Funding Notices. (a) Whenever the Borrower desires to make a Base Rate Borrowing or a Eurodollar Borrowing under the Commitments (other than one resulting from a continuation or conversion pursuant to Section 3.5(c) or (d)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “Notice of Borrowing”), such Notice of Borrowing to be given prior to 11:00 A.M. (New York, New York time) (x) on the Business Day of the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. (New York, New York time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable, shall be substantially in the form of Exhibit B, and shall specify (A) the aggregate principal amount of the Borrowing, (B) the date of Borrowing (which shall be a Business Day), and (C) whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances and, in the case of Eurodollar Advances, the Interest Period to be applicable thereto. (b) Whenever the Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 Business Days’ prior written notice of each such Borrowing to be continued as Eurodollar Advances. Such notice (a “Notice of Continuation/Conversion”) shall be given to the Agent prior to 11:00 A.M. (New York, New York time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit C, and shall specify (i) the aggregate principal amount of the Revolving Loans to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific Revolving Loans to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 2 contracts

Samples: Credit Agreement (Gold Kist Inc), Credit Agreement (Gold Kist Inc.)

Funding Notices. (a) ~~Whenever~~ Subject to the Borrower desires to make a Base Rate Borrowing or a Eurodollar Borrowing under the Commitments (other than one resulting from a continuation or conversion pursuant to Section 3.5(c) or (d)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed satisfaction in ~~writing) of such Borrowing (a “Notice of Borrowing”), such Notice of Borrowing to be given prior to 11:00 A.M. (New York, New York time) (x) on the Business Day~~ full of the ~~requested date of such Borrowing in the case of Base Rate Advances,~~ terms and (y) 2 Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. (New York, New York time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable, shall be substantially in the form of Exhibit B, and shall specify (A) the aggregate principal amount of the Borrowing, (B) the date of Borrowing (which shall be a Business Day), and (C) whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances and, in the case of Eurodollar Advancesconditions herein, the ~~Interest Period to be applicable thereto~~Lender shall fully fund the Term Loan Commitment Closing Date. (b) Whenever ~~the~~ Borrower desires to ~~make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ convert one or more Borrowings of ~~the proposed Swing Line Advance. Each such notice~~ one Type into one or more Borrowings of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give ~~the Agent at least 2 Business Days’~~ Lender prior written notice of each such Borrowing to be converted or continued ~~as Eurodollar Advances. Such notice~~ (a “Notice of Conversion/Continuation”), such Notice of Conversion/~~Conversion”) shall~~ Continuation to be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York~~local time for the Lender) at its Lending Office (i) one (1) Business Day prior to the requested date of such Borrowing in the case of the continuation into an ABR Advance, ~~New York time~~and (ii) three (3) Business Days prior to the requested date of such Borrowing in the case of a continuation of or conversion into Eurodollar Advances. Notices received after 11:00 A.M. shall be deemed received on the ~~date specified~~next Business Day. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Borrowing to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation (which shall be a Business Day), whether the Borrowing is being converted into or ~~conversion, (iii) the specific Revolving Loans to be~~ continued ~~or converted,~~ as Eurodollar Advances and (ivin the case of Eurodollar Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to ~~convert~~ continue such Borrowing as a Eurodollar Advance for the same interest Period then applicable to a said Borrowing. No conversion of any Borrowing ~~consisting~~ of ~~Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period)~~ Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be ~~continued or converted at~~ permitted except on the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice last day of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period ~~selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted~~in respect thereof. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 2 contracts

Samples: Term Loan Agreement, Term Loan Agreement (Brown & Brown Inc)

Funding Notices. (ai) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ of Revolving Loans with respect to the Revolving Credit Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~4.1.(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given at Agent's Payment Office (x) prior to 11:00 A.M. (~~New York, New York time) (x~~local time for the Agent) on the Business Day of which is the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 prior to 12:00 noon (local time for the Agent) three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after ~~11:00 A.M. (New York, New York time)~~ 12:00 noon shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (bii) Whenever ~~the~~ Borrower desires to ~~make~~ obtain a Swing Line ~~Borrowing~~Loan under the Swing Line Facility (other than one resulting from a conversion or continuation pursuant to Section 4.1.(b)), it shall give the Swing Line ~~Bank notice, not later than 11:00 A.M.~~ Lender prior written notice (~~New York, New York time~~or telephonic notice promptly confirmed in writing) ~~on the date~~ of ~~the proposed~~ such Swing Line ~~Advance. Each such notice of a proposed Swing Line Borrowing~~ Loan (a “"Notice of Swing Line ~~Borrowing”~~Loan"), such Notice of Swing Line Loan to be given at its Payment Office (x) ~~shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein~~ prior to 12:00 Noon (local time for the Swing Line Lender) on the Business Day which is the requested ~~(i)~~ date ~~on which such Swing Line Advances to be made and (ii) amount~~ of such Swing Line ~~Advance. The~~ Loan in the case of Base Rate Advances, (y) prior to 10:00 a.m. (local time for the Swing Line ~~Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time~~Lender) on the Business Day which is the requested date of such Swing Line Loan in the case of Cost of Funds Advances, and (y) prior to 12:00 noon (local time for the Swing Line Lender) two Business Days prior to the requested date of such Swing Line Loan in the case of Eurodollar Advances. Notices received after 12:00 noon shall be deemed received on the next Business Day~~, to the Borrower in same day funds by crediting the account of the Borrower set forth in the~~ . Each Notice of Swing Line ~~Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank)~~ Loan shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) irrevocable and shall ~~be obligated to fund such participation at such time and in~~ specify the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding aggregate principal amount of the Swing Line ~~Advance made by~~ Loan, the date of Swing Line Loan (which shall be a Business Day), and whether the Swing Line ~~Bank shall~~ Loan is to consist of Base Rate Advances, Cost of Funds Advances or Eurodollar Advances and (in the case of Eurodollar Advances and Cost of Funds Advances) the Interest Period to be ~~reduced by such amount on such Business Day~~applicable thereto. (ciii) At Whenever Borrower desires to receive Competitive Bids, it shall follow the ~~end~~ procedure set forth in Section 2.6. (i) Whenever Borrower desires to convert all or a portion of an ~~Interest Period~~outstanding Borrowing under the Revolving Credit Commitments consisting of Base Rate Advances into a Borrowing consisting of Eurodollar Advances, ~~if the Borrower desires~~ or to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to ~~11:00 A.M.~~ 12:00 noon (~~New York, New York time~~local time for the Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period to be applicable thereto. If, upon the expiration of any Interest Period in respect of any ~~Borrowing~~Borrowing consisting of Eurodollar Advances, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If No conversion of any Borrowing of Eurodollar Advances shall be permitted except on the last day of the Interest Period in respect thereof. (ii) Whenever Borrower ~~has complied with~~ desires to convert all or a portion of an outstanding Swing Line Loan consisting of Base Rate Advances into a Swing Line Loan consisting of Eurodollar Advances or Cost of Funds Advances, or to continue outstanding a Swing Line Loan consisting of Eurodollar Advances or Cost of Funds Advances for a new Interest Period, it shall give the ~~terms~~ Swing Line Lender prior written notice (or telephonic notice promptly confirmed in writing) of ~~this Section 3.5(c)~~each such Swing Line Loan to be converted into or continued as Eurodollar Advances or Cost of Funds Advances, ~~then~~ such notice to be given at least two Business Days in advance thereof, in the ~~Revolving~~ case of Eurodollar Advances, or on the same day, in the case of Cost of Funds Advances. Such notice (a "Notice of Conversion/Continuation of Swing Line Loans") shall be given prior to 12:00 noon in the case of Eurodollar Advances, or 10:00 a.m. in the case of Cost of Funds Advances (local time for the Swing Line Lender) on the date specified at the Payment Office of the Swing Line Lender. Each such Notice of Conversion/Continuation of Swing Line Loans ~~identified~~ shall be irrevocable and shall specify the aggregate principal amount of the Advances to be converted or continued, the date of such conversion or continuation and the Interest Period to be applicable thereto. If, upon the expiration of any Interest Period in respect of any Swing Line Loan consisting of Eurodollar Advances or Cost of Funds Advances, Borrower shall have failed to deliver the Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation of Swing Line Loans, Borrower shall be ~~continued~~ deemed to have elected to convert or ~~converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert~~ continue such Swing Line Loan to a Swing Line Loan consisting of Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so Advances. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be ~~continuing at the time of such conversion~~continuing, no ~~Borrowing~~ Swing Line Loan may be converted into or continued as (upon expiration of the current Interest Period) Eurodollar Advances or Cost of Funds Advances unless the ~~Agent and each of the Lenders~~ Swing Line Lender shall have otherwise consented in writing. ~~In each case, such Notice~~ No continuation or conversion of ~~Continuation/Conversion~~ any Swing Line Loan of Eurodollar Advances or Cost of Funds Advances shall ~~specify~~ be permitted except on the last day of the Interest Period ~~selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted~~in respect thereof. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the ~~Lenders~~ Swing Line Lender may act without liability upon the basis of telephonic notice believed by the Agent or ~~any Lender~~ the Swing Line Lender, as the case may be, in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the Agent~~’s and~~ 's or the Swing Line Lender’s 's, as the case may be, record of the terms of such telephonic notice. (fd) The Agent shall promptly (and in any event by the same time on the next succeeding Business Day as such notice is received) give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 4.1. with ~~different Interest Periods outstanding under~~ respect to the Revolving Credit Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 2 contracts

Samples: Credit Agreement (Rock Tenn Co), Credit Agreement (Rock Tenn Co)

Funding Notices. (a) Whenever the Borrower desires to make a Base Rate Borrowing or a Eurodollar Borrowing under the ~~Commitments~~ Revolving Commitment (other than one resulting from a continuation or conversion pursuant to Section ~~3.5(c) or (d~~3.6(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (New York, New York time) (x) on the Business Day of the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 two Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. (New York, New York time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable, shall be substantially in the form of Exhibit BC attached to this Agreement, and shall specify (A) the aggregate principal amount of the Borrowing, (B) the date of Borrowing (which shall be a Business Day), and (C) whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances and, in the case of Eurodollar Advances, the Interest Period to be applicable thereto. (b) Whenever the Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “"Notice of Swing Line Borrowing”") shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the ~~Swing Line~~ Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender~~’s Pro Rata~~ 's Revolving Commitment Share (the “"Swing Line Participation”") and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s 's obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any ~~set-~~set- off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 two Business Days’ ' prior written notice of each such Borrowing to be continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given to the Agent prior to 11:00 A.M. (New York, New York time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit CD attached to this Agreement, and shall specify (i) the aggregate principal amount of the ~~Revolving Loans~~ Advances to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific ~~Revolving Loans~~ Advances to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this ~~Section 3.5(c),~~ subsection (b) then the ~~Revolving Loans~~ Advances identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Revolving Notes or the Tranche A Term Notes to a Eurodollar Borrowing; provided, however, that ~~(i)~~ the Borrower shall give the Agent a Notice of Continuation/Conversion 2 two Business Days prior to such a ~~conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such~~ conversion~~, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing~~. In each ~~case,~~ case such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific ~~Revolving Loans~~ Advances to be converted. (e) Without in any way limiting the Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5~~3.6. (g) There shall not be at any one time more than 8 eight (8) Eurodollar Advances with different Interest Periods outstanding under each of (i) the ~~Commitments~~Revolving Commitment or (ii) the Tranche A Term Loan Commitment. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such ~~Revolving Loan~~ Advance the applicable conditions set forth in Article 4IV, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the ~~Swing Line Bank~~ Agent in the case of ~~Swing Line~~ Advances by the ~~Swing Line Bank~~ Agent pursuant to Section ~~2.1(b~~2.1(c)) to fund such ~~Revolving Loan~~ Advance when such ~~Revolving Loan~~Advance, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Gold Kist Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate Borrowing or a Eurodollar Borrowing under the Commitments (other than one resulting from a continuation or conversion pursuant to Section 3.5(c) or (d))~~Borrowing, it shall give the ~~Agent~~ Lender prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Lender) at its Lending Office (xi) ~~on the~~ one (1) Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, and (yii) ~~2 Business~~ two (2)Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ convert one or more Borrowings of ~~the proposed Swing Line Advance. Each such notice~~ one Type into one or more Borrowings of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give ~~the Agent at least 2 Business Days’~~ Lender prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be ~~continued as Eurodollar Advances. Such notice (a “~~converted or continued, such Notice of ~~Continuation~~Conversion/~~Conversion”) shall~~ Continuation to be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York~~local time for the Lender) at its Lending Office (i) one (1) Business Day prior to the requested date of such Borrowing in the case of the continuation into a Base Rate Advance, ~~New York time~~and (ii) two (2) Business Days prior to the requested date of such Borrowing in the case of a continuation of or conversion into Eurodollar Advances. Notices received after 11:00 A.M. shall be deemed received on the ~~date specified~~next Business Day. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Borrowing to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation (which shall be a Business Day), whether the Borrowing is being converted into or ~~conversion, (iii) the specific Revolving Loans to be~~ continued ~~or converted,~~ as Eurodollar Advances and (ivin the case of Eurodollar Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to ~~convert~~ continue such Borrowing as a Eurodollar Advance for the same interest Period then applicable to a said Borrowing. No conversion of any Borrowing ~~consisting~~ of ~~Base Rate Advances. So long as any Default or Event of Default~~ Eurodollar Advances shall ~~have occurred and~~ be ~~continuing, no Borrowing may be continued as or converted to (upon expiration~~ permitted except on the last day of the ~~current~~ Interest ~~Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented~~ Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the ~~Agent and the Lenders~~ Lender may act without liability upon the basis of telephonic notice believed by the ~~Agent or any~~ Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the ~~Agent’s and the~~ Lender’s 's record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving and Term Loan Agreement (Brown & Brown Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate Borrowing or a Eurodollar Borrowing under the Commitments (other than one resulting from a continuation or conversion pursuant to Section 3.5(c) or (d))~~Borrowing, it shall give the ~~Agent~~ Lender prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Lender) at its Lending Office (xi) ~~on the~~ one (1) Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, and (yii) 2 two (2) Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ convert one or more Borrowings of ~~the proposed Swing Line Advance. Each such notice~~ one Type into one or more Borrowings of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give ~~the Agent at least 2 Business Days’~~ Lender prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be ~~continued as Eurodollar Advances. Such notice (a “~~converted or continued, such Notice of ~~Continuation~~Conversion/~~Conversion”) shall~~ Continuation to be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York~~local time for the Lender) at its Lending Office (i) one (1) Business Day prior to the requested date of such Borrowing in the case of the continuation into a Base Rate Advance, ~~New York time~~and (ii) two (2) Business Days prior to the requested date of such Borrowing in the case of a continuation of or conversion into Eurodollar Advances. Notices received after 11:00 A.M. shall be deemed received on the ~~date specified~~next Business Day. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Borrowing to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation (which shall be a Business Day), whether the Borrowing is being converted into or ~~conversion, (iii) the specific Revolving Loans to be~~ continued ~~or converted,~~ as Eurodollar Advances and (ivin the case of Eurodollar Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to ~~convert~~ continue such Borrowing as a Eurodollar Advance for the same interest Period then applicable to a said Borrowing. No conversion of any Borrowing ~~consisting~~ of ~~Base Rate Advances. So long as any Default or Event of Default~~ Eurodollar Advances shall ~~have occurred and~~ be ~~continuing, no Borrowing may be continued as or converted to (upon expiration~~ permitted except on the last day of the ~~current~~ Interest ~~Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented~~ Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the ~~Agent and the Lenders~~ Lender may act without liability upon the basis of telephonic notice believed by the ~~Agent or any~~ Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the ~~Agent’s and the~~ Lender’s 's record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving Loan Agreement (Brown & Brown Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ with respect to the Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~4.1(b)), it shall give the Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) at its Payment Office (xi) on ~~the Business Day of~~ the requested date of such Borrowing in the case of Revolving Loans comprised of Base Rate Advances, and (yii) 2 three Business Days prior to the requested date of such Borrowing in the case of ~~Eurodollar~~ LIBOR Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), ~~and (C)~~ whether the Borrowing is to consist of Base Rate Advances or ~~Eurodollar~~ LIBOR Advances and, in the case of ~~Eurodollar~~ LIBOR Advances, the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a ~~Swing Line Borrowing~~portion of an outstanding Borrowing under the Revolving Loans, ~~it shall give the Swing Line Bank notice~~which Borrowing consists of Base Rate Advances or LIBOR Advances, ~~not later than 11:00 A.M. (New York, New York time) on the date~~ into one or more Borrowings consisting of ~~the proposed Swing Line Advance. Each such notice~~ Advances of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of ~~Eurodollar~~ LIBOR Advances for a new ~~Interest~~ interest Period, it shall give the Administrative Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as ~~Eurodollar~~ LIBOR Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) on the date ~~specified.~~ specified at the Payment Office of the Administrative Agent Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued ~~or converted~~as LIBOR Advances and, ~~and (iv)~~ in the case of LIBOR Advances, the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued ~~as or converted to~~ (upon expiration of the current Interest Period) ~~Eurodollar~~ as LIBOR Advances. No conversion of any Borrowing of LIBOR Advances ~~unless~~ shall be permitted except on the ~~Agent and each~~ last day of the ~~Lenders shall have otherwise consented~~ Interest Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Administrative Agent and the Lenders may act without liability upon the basis of telephonic notice reasonably believed by the Administrative Agent or ~~any~~ the Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation~~. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice~~. (fd) The Administrative Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Administrative Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ with ~~different Interest Periods outstanding under~~ respect to the Revolving Loan Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Senior Secured Revolving Credit Agreement (Able Telcom Holding Corp)

Funding Notices. (ai) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing~~ of Syndicate Loans under ~~the~~ its Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)(i)), it shall give the Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing~~”),~~ ") at its Payment Office such Notice of Borrowing to be given prior to ~~11:00 A.M. (New York, New York time)~~ (x) on I 1:00 A.M. (local time for the Administrative Agent) one (1) Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, ~~and~~ (y) 2 11:00 A.M. (local time for the Administrative Agent) three (3) Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances and (z) prior to 1:00 P.M. (local time for the Administrative Agent) on the requested date of such Borrowing in the case of Competitive Bid Advances. Notices received after ~~11:00~~ 1 1:00 A.M. ~~(New York, New York time)~~ for Base Rate Advances and Eurodollar Advances and 1:00 P.M. for Competitive Bid Advances shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (bii) Whenever ~~the~~ Borrower desires to make a ~~Swing Line Borrowing~~Borrowing of Competitive Bid Loans under its Revolving Loan Commitments (other than one resulting from a conversion or continuation pursuant to Section 3.01(b)(ii)), it shall give the ~~Swing Line Bank notice~~Administrative Agent notice that the Lenders are requested to provide Competitive Bid Rates for Interest Periods identified by Borrower, such Interest Periods not ~~later than 11:00 A.M. (New York~~to exceed 180 days. Notices must comply with notice requirements of each respective Lender, ~~New York~~ which shall be communicated by Lenders to Borrower from time to time~~) on~~ . Each Lender in its discretion may, but shall not be obligated to, submit a quote to the ~~date~~ Borrower in connection with such request. The Borrower shall then be entitled, in its sole discretion, to elect to incur all or any part of the ~~proposed Swing Line Advance~~Competitive Bid Loan offered by one or more of the Lenders that have elected to provide quotes for any of the Interest Periods and at the rate(s) quoted by such Lender(s). ~~Each~~ The Competitive Bid Loans incurred by the Borrower in connection with such ~~notice of~~ a ~~proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”)~~ request for quotes shall ~~be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested~~ not exceed (i) ~~date on which such Swing Line Advances~~ with respect to ~~be made~~ all Lenders then providing quotes, the then unutilized Revolving Loan Commitments of all Lenders as a group, and (ii) with respect to each Lender providing a quote, the amount of bid by such ~~Swing Line Advance~~Lender in connection with such Lender's quote. The ~~Swing Line Bank~~Borrower shall notice the Administrative Agent and such Lender or Lenders of its election in accordance with the procedures established with such Lender or Lenders, ~~upon fulfillment~~ having no obligation to report the terms thereof; Provided, however, that if any Borrowing of Eurodollar Advances must be made as Base Rate Advances as a result of a determination made by the ~~applicable conditions set forth~~ Administrative Agent pursuant to Section ~~4.2~~3.09, ~~will make the amount thereof available,~~ such Notice of Borrowing may be revoked by Borrower no later than ~~4:00 P.M.~~ one (~~New York, New York time~~1) ~~on such~~ Business ~~Day,~~ Day prior to the ~~Borrower in same day funds by crediting the account~~ date of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, funding. (i) ~~any set-off, counterclaim, recoupment, defense~~ Whenever Borrower desires to convert all or ~~other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance~~ a portion of ~~Default or~~ an ~~Event~~ outstanding Borrowing of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Syndicate Loans under its Revolving Loan ~~made by such Lender on such Business Day for purposes~~ Commitments, Which Borrowing consists of ~~the Agreement, and the outstanding principal amount~~ Base Rate Advances into one or more Borrowings consisting of ~~the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires~~ Eurodollar Advances or to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Administrative Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given ~~to the Agent~~ prior to ~~11:00~~ I 1:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) on the date ~~specified~~specified at the Payment Office of the Administrative Agent. Each such Notice of Continuation/Conversion shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving Credit Agreement (Hughes Supply Inc)

Funding Notices. (a) Whenever the Borrower desires to make a Base Rate Borrowing or a Eurodollar Borrowing under the ~~Commitments~~ Revolving Commitment (other than one resulting from a continuation or conversion pursuant to Section ~~3.5(c) or (d~~3.6(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (New York, New York time) (x) on the Business Day of the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 two Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. (New York, New York time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable, shall be substantially in the form of Exhibit BC attached to this Agreement, and shall specify (A) the aggregate principal amount of the Borrowing, (B) the date of Borrowing (which shall be a Business Day), and (C) whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances and, in the case of Eurodollar Advances, the Interest Period to be applicable thereto. (b) Whenever the Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “"Notice of Swing Line Borrowing”") shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the ~~Swing Line~~ Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender~~’s Pro Rata~~ 's Revolving Commitment Share (the “"Swing Line Participation”") and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s 's obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 two Business Days’ ' prior written notice of each such Borrowing to be continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given to the Agent prior to 11:00 A.M. (New York, New York time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit CD attached to this Agreement, and shall specify (i) the aggregate principal amount of the ~~Revolving Loans~~ Advances to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific ~~Revolving Loans~~ Advances to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this ~~Section 3.5(c),~~ subsection (b) then the ~~Revolving Loans~~ Advances identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Revolving Notes or the Tranche A Term Notes to a Eurodollar Borrowing; provided, however, that ~~(i)~~ the Borrower shall give the Agent a Notice of Continuation/Conversion 2 two Business Days prior to such a ~~conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such~~ conversion~~, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing~~. In each ~~case,~~ case such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific ~~Revolving Loans~~ Advances to be converted. (e) Without in any way limiting the Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5~~3.6. (g) There shall not be at any one time more than 8 eight (8) Eurodollar Advances with different Interest Periods outstanding under each of (i) the ~~Commitments~~Revolving Commitment or (ii) the Tranche A Term Loan Commitment. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such ~~Revolving Loan~~ Advance the applicable conditions set forth in Article 4IV, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the ~~Swing Line Bank~~ Agent in the case of ~~Swing Line~~ Advances by the ~~Swing Line Bank~~ Agent pursuant to Section ~~2.1(b~~2.1(c)) to fund such ~~Revolving Loan~~ Advance when such ~~Revolving Loan~~Advance, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Gold Kist Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ with respect to the Syndicate Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c~~4.1(c) or ~~(d))~~a Multicurrency Loan, it shall give the Agent at its Payment Office prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to (i) 11:00 ~~A.M.~~ a.m. (~~New York, New York time~~local time for the Agent) ~~(x) on~~ the same Business Day of the requested date of such Borrowing in the case of Revolving Loans comprised of Base Rate Advances, and (yi) 2 11:00 a.m. (local time for the Agent) three (3) Business Days prior to the requested date of such Borrowing in the case of ~~Eurodollar~~ LIBOR Advances. Notices received after ~~11:00 A.M. (New York, New York time)~~ the above times shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ that such Borrowing will be a Revolving Loan, the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), ~~and (C)~~ whether the Borrowing is to consist of Base Rate Advances or ~~Eurodollar~~ LIBOR Advances ~~and,~~ and (in the case of ~~Eurodollar~~ LIBOR Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to make a ~~Swing Line Borrowing~~Borrowing consisting of one or more Multicurrency Loans, it shall give the ~~Swing Line Bank notice~~Agent at its Payment Office prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a "Notice of Multicurrency Loan"), ~~not later than~~ such Notice of Multicurrency Loan to be given prior to 11:00 ~~A.M.~~ a.m. (~~New York~~local time for the Agent) four (4) Foreign Currency Business Days prior to the requested date of such Borrowing. Notices received after such time shall be deemed received on the next Foreign Currency Business Day. Each Notice of Multicurrency Loan shall be irrevocable and shall specify that such Borrowing will be a Multicurrency Loan, ~~New York time) on~~ the date of ~~the proposed Swing Line Advance. Each such notice of a proposed Swing Line~~ Borrowing (~~a “Notice of Swing Line Borrowing”)~~ which shall be ~~by telephone~~a Business Day), ~~confirmed immediately~~ the foreign currency in ~~writing~~which the Borrowing is to be made (which must be an Available Foreign Currency), ~~or telex or telecopier, specifying therein~~ the ~~requested (i) date on which such Swing Line Advances~~ U.S. Dollar Equivalent amount of the Borrowing to be made and ~~(ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of~~ the initial Interest Period to be applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Daythereto. (c) ~~At the end~~ Whenever Borrower desires to convert all or a portion of an ~~Interest Period~~outstanding Borrowing under the Syndicate Revolving Loans (other than a Multicurrency Loan), ~~if the Borrower desires~~ which Borrowing consists of Base Rate Advances or LIBOR Advances, into one or more Borrowings consisting of Advances of another Type, or to continue outstanding a Borrowing consisting of ~~Eurodollar~~ LIBOR Advances for a new Interest Period, it shall give the Agent at least 2 three (3) Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or, continued as ~~Eurodollar~~ LIBOR Advances. Whenever Borrower desires to continue a Multicurrency Loan, it shall give the Agent written notice (or telephonic notice promptly confirmed in writing) thereof at least four (4) Foreign Currency Business Days prior to the end of the applicable Interest Period. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given (a) with respect to ~~the Agent~~ LIBOR Advances, prior to 11:00 ~~A.M.~~ a.m. (~~New York~~local time for the Agent) and (b) with respect to Multicurrency Loans, ~~New York time)~~ prior to 11:00 a.m. (local time for the Agent), on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ or the amount of the Multicurrency Loan to be continued, as the case may be, the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ in respect of LIBOR Advances, whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued ~~or converted,~~ as LIBOR Advances and (ivin the case of LIBOR Advances and Multicurrency Loans) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued ~~as or converted to~~ (upon expiration of the current Interest Period) ~~Eurodollar~~ as LIBOR Advances. No conversion of any Borrowing of LIBOR Advances ~~unless~~ shall be permitted except on the ~~Agent and each~~ last day of the ~~Lenders shall have otherwise consented~~ Interest Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing Any Multicurrency Loan which remains unpaid at the ~~time~~ expiration of ~~such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify~~ the Interest Period ~~selected by~~ applicable thereto shall be automatically continued for an Interest Period of the ~~Borrower for such Borrowing and the specific Revolving Loans to be converted~~same length. (e) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice reasonably believed by the Agent or ~~any~~ the Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation~~. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice~~. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 4.1 with ~~different Interest Periods outstanding under~~ respect to the Revolving Credit Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (Planet Hollywood International Inc)

Funding Notices. (a) Whenever the Borrower desires to make a Base Rate Borrowing or a Eurodollar Borrowing under the ~~Commitments~~ 364-Day Line of Credit Commitment (other than one resulting from a continuation or conversion pursuant to Section ~~3.5(c) or (d~~3.6(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) (x) on the Business Day of the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 two Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable, shall be substantially in the form of Exhibit BC attached to this Agreement, and shall specify (A) the aggregate principal amount of the Borrowing, (B) the date of Borrowing (which shall be a Business Day), and (C) whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances and, in the case of Eurodollar Advances, the Interest Period to be applicable thereto. (b) Whenever the Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New ~~York, New~~ York City time) on the date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “"Notice of Swing Line Borrowing”") shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section ~~4.2~~4.02, will make the amount thereof available, no later than 4:00 P.M. (New ~~York, New~~ York City time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the ~~Swing Line~~ Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such ~~Swing Line~~ Advance times such Lender~~’s Pro Rata~~ 's 364-Day Commitment Share (the “"Swing Line Participation”") and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s 's obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by ~~the~~ any Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 ~~P.M.~~ p.m. (New ~~York, New~~ York City time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan ~~Documents~~Documents or the Borrower to which such Swing Line Advance was made. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a ~~Revolving~~ 364-Day Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 two Business Days’ ' prior written notice of each such Borrowing to be continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given to the Agent prior to 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit CD attached to this Agreement, and shall specify (i) the aggregate principal amount of the ~~Revolving Loans~~ Advances to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific ~~Revolving Loans~~ Advances to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this ~~Section 3.5(c),~~ subsection (b) then the ~~Revolving Loans~~ Advances identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the 364-Day Notes or the Term Notes to a Eurodollar Borrowing; provided, however, that ~~(i)~~ the Borrower shall give the Agent a Notice of Continuation/Conversion 2 two Business Days prior to such a ~~conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such~~ conversion~~, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing~~. In each ~~case,~~ case such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific ~~Revolving Loans~~ Advances to be converted. (e) Without in any way limiting the Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5~~3.6. (g) There shall not be at any one time more than 8 eight (8) Eurodollar Advances with different Interest Periods outstanding under each of (i) the ~~Commitments~~364-Day Line of Credit Commitment or (ii) the Tranche A Term Loan Commitment. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such ~~Revolving Loan~~ Advance the applicable conditions set forth in Article 4IV, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the ~~Swing Line Bank~~ Agent in the case of ~~Swing Line~~ Advances by the ~~Swing Line Bank~~ Agent pursuant to Section ~~2.1(b~~2.1(c)) to fund such ~~Revolving Loan~~ Advance when such ~~Revolving Loan~~Advance, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Gold Kist Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate Borrowing or a Eurodollar Borrowing under the Commitments (other than one resulting from a continuation or conversion pursuant to Section 3.5(c) or (d))~~Borrowing, it shall give the ~~Agent~~ Lender prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “Notice of Borrowing”), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Lender) at its Lending Office (xi) ~~on the~~ one (1) Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, and (yii) 2 two (2) Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ convert one or more Borrowings of ~~the proposed Swing Line Advance. Each such notice~~ one Type into one or more Borrowings of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give ~~the Agent at least 2 Business Days’~~ Lender prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be ~~continued as Eurodollar Advances. Such notice (a “~~converted or continued, such Notice of ~~Continuation~~Conversion/~~Conversion”) shall~~ Continuation to be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York~~local time for the Lender) at its Lending Office (i) one (1) Business Day prior to the requested date of such Borrowing in the case of the continuation into a Base Rate Advance, ~~New York time~~and (ii) two (2) Business Days prior to the requested date of such Borrowing in the case of a continuation of or conversion into Eurodollar Advances. Notices received after 11:00 A.M. shall be deemed received on the ~~date specified~~next Business Day. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Borrowing to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation (which shall be a Business Day), whether the Borrowing is being converted into or ~~conversion, (iii) the specific Revolving Loans to be~~ continued ~~or converted,~~ as Eurodollar Advances and (ivin the case of Eurodollar Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to ~~convert~~ continue such Borrowing as a Eurodollar Advance for the same interest Period then applicable to a said Borrowing. No conversion of any Borrowing ~~consisting~~ of ~~Base Rate Advances. So long as any Default or Event of Default~~ Eurodollar Advances shall ~~have occurred and~~ be ~~continuing, no Borrowing may be continued as or converted to (upon expiration~~ permitted except on the last day of the ~~current~~ Interest ~~Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented~~ Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s obligation to confirm in writing any telephonic notice, the ~~Agent and the Lenders~~ Lender may act without liability upon the basis of telephonic notice believed by the ~~Agent or any~~ Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute ~~the Agent’s and~~ the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving Loan Agreement (Brown & Brown Inc)

Funding Notices. (ai) Whenever the Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ of Revolving Loans with respect to the Revolving Credit Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.1.(b)), it shall give the Agent prior written notice in substantially the same form as set forth in Exhibit L (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given at Agent's Payment Office (x) prior to 11:00 ~~A.M.~~ a.m. (~~New York~~Nashville, ~~New York~~ Tennessee time~~) (x~~) on the Business Day of which is the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 prior to 11:00 a.m. (Nashville, Tennessee time) three (3) Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 ~~A.M.~~ a.m. (~~New York~~Nashville, ~~New York~~ Tennessee time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (ii) Whenever Borrower desires to receive Competitive Bids, it shall follow the procedure set forth in Section 2.4. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a ~~Swing Line Borrowing, it shall give~~ portion of an outstanding Borrowing under the ~~Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ Revolving Credit Commitments consisting of ~~the proposed Swing Line Advance. Each such notice~~ Base Rate Advances into a Borrowing consisting of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~Eurodollar Advances, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 three (3) Business Days’ ' prior written notice in substantially the same form as Exhibit M (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 ~~A.M.~~ a.m. (~~New York~~Nashville, ~~New York~~ Tennessee time) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period to be applicable thereto. If, upon the expiration of any Interest Period in respect of any ~~Borrowing~~Borrowing consisting of Eurodollar Advances, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/ Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ Eurodollar Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (fc) The Agent shall promptly (and in any event by the same time on the next succeeding Business Day as such notice is received) give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 3.1. with ~~different Interest Periods outstanding under~~ respect to the Revolving Credit Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Dollar General Corp)

Funding Notices. (ai) Whenever the Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ of Revolving Loans with respect to the Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to ~~Section 3.5(c) or (d~~SECTION 4.01(b)), it shall give the Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Revolving Borrowing”"), such Notice of Revolving Borrowing to be given ~~prior to 11:00 A.M. (New York, New York time)~~ at its Payment Office (x) prior to 12:00 noon (local time for the Administrative Agent) on the ~~Business Day of the requested~~ date of such requested Borrowing in the case of Base Rate Advances, and (y) 2 prior to 2:00 p.m. (local time for the Administrative Agent) three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances and Secondary C/D Rate Advances. Notices received after ~~11:00 A.M. (New York, New York time)~~ the times set forth above shall be deemed received on the next Business Day. Each Notice of Revolving Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), ~~and (C)~~ whether the Borrowing is to consist of Base Rate Advances, Secondary C/D Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of ~~Eurodollar~~ Fixed Rate Advances, ) the Interest Period to be applicable thereto. (bii) Whenever the Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line ~~Bank notice, not later than 11:00 A.M.~~ Lender (~~New York, New York time~~with a copy to the Administrative Agent) prior written notice (or telephonic notice promptly confirmed in writing) of such Swing Line Borrowing (each a "Swing Line Borrowing Notice") prior to 2:00 p.m. (local time for the Swing Line Lender) on the date of ~~the proposed~~ such Swing Line ~~Advance~~Borrowing. Each Swing Line Borrowing Notice shall specify the aggregate principal amount of the Swing Line Borrowing, the date of such ~~notice of a proposed~~ Swing Line Borrowing (which shall be a ~~“Notice~~ Business Day), whether a Cost of Funds Rate Quote is being requested and, if so, the Interest Period to be applicable thereto. If the Borrower requests a Cost of Funds Rate Quote as aforesaid, then prior to 2:00 p.m. (local time for the Swing Line Lender) on such date, the Swing Line Lender shall furnish the Borrower with a quotation of the interest rate being offered with respect to such Swing Line Borrowing (whether expressed as a fixed rate of interest in effect for the Interest Period applicable thereto or as a floating rate of interest based on a specified interest rate index and applicable margin for the Interest Period to be applicable thereto; in either case, a "Cost of Funds Rate Quote") by telephone (promptly confirmed in writing) or by facsimile transmission. The Borrower shall immediately inform the Swing Line Lender of its decision as to whether to accept the Cost of Funds Rate Quote and to confirm the Swing Line Borrowing (which may be done by telephone, promptly confirmed in writing, and which decision shall be irrevocable). If Borrower has so informed the Swing Line Lender and confirmed the terms of the Swing Line Borrowing~~”) shall be by telephone~~, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, then no later than ~~4:00 P.M.~~ 3:00 p.m. (~~New York, New York time~~local time for the Swing Line Lender) on such ~~Business Day~~date, the Swing Line Lender shall make the principal amount of the Swing Line Loan available to the Borrower ~~in same day funds~~ by crediting such amount to Borrower's demand deposit account maintained with the ~~account~~ Swing Line Lender. If no Cost of ~~the Borrower set forth~~ Funds Rate Quote is requested or specified in the Notice of Swing Line Borrowing ~~pursuant to which~~ the Swing Line ~~Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank)~~ Loan shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; made as a Base Rate Advance. (iii) ~~any adverse change in~~ The Borrower shall notify the ~~condition~~ Administrative Agent at least three (~~financial or otherwise~~3) Business Days prior to the Closing Date of the ~~Borrower or any other Person; (iv) any breach of this Agreement by~~ Borrowings which will comprise the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business DayTerm Loans. (cb) ~~At the end of an Interest Period, if~~ Whenever the Borrower desires to convert all or a portion of an outstanding Borrowing under the Revolving Loan Commitments or the Term Loans consisting of Base Rate Advances into a Borrowing consisting of Fixed Rate Advances or to convert all or a portion of an outstanding Borrowing consisting of Fixed Rate Advances into another type of Fixed Rate Advances, or to continue outstanding a Borrowing consisting of ~~Eurodollar~~ Fixed Rate Advances for a new Interest Period, it shall give the Administrative Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as ~~Eurodollar~~ Fixed Rate Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to ~~11:00 A.M.~~ 2:00 p.m. (~~New York, New York time~~local time for the Administrative Agent) on the date ~~specified~~specified at the Payment Office of the Administrative Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the applicable type of Fixed Rate Advances, the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period to be applicable thereto. If, upon the expiration of any Interest Period in respect of any ~~Borrowing~~Borrowing consisting of Fixed Rate Advances, the Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then~~ the Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) ~~Eurodollar~~ Fixed Rate Advances unless the Administrative Agent and each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ Fixed Rate Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting the Borrower’s 's obligation to confirm in writing any telephonic notice, the Administrative Agent and the ~~Lenders~~ Swing Line Lender may act without liability upon the basis of telephonic notice believed by the Administrative Agent or ~~any Lender~~ the Swing Line Lender, as the case may be, in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Administrative Agent~~’s and~~ 's or the Swing Line Lender’s 's, as the case may be, record of the terms of such telephonic notice. (fd) The Administrative Agent shall promptly (and in any event by the same time on the next succeeding Business Day as such notice is received) give (i) each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Administrative Agent pursuant to this ~~Section 3.5~~SECTION 4.01. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Dixie Group Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ with respect to the Revolving Credit Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing substantially in the form of Exhibit B, with appropriate insertions (a “"Notice of Borrowing”"), such Notice of Borrowing to be given at its Payment Office (x) prior to 11:00 A.M. (~~New York, New York time) (x~~local time for the Agent) on the Business Day of which is the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 prior to 12:00 noon (local time for the Agent) three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after ~~11:00 A.M. (New York, New York time)~~ 12:00 noon shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a ~~Swing Line Borrowing, it shall give~~ portion of an outstanding Borrowing under the ~~Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ Revolving Credit Commitments consisting of ~~the proposed Swing Line Advance. Each such notice~~ Base Rate Advances into a Borrowing consisting of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~Eurodollar Advances, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such ~~notice~~ notice, substantially in the form of Exhibit C attached hereto, with appropriate insertions (a “"Notice of Conversion/Continuation~~/Conversion”)~~ "), shall be given ~~to the Agent~~ prior to ~~11:00 A.M.~~ 12:00 noon (~~New York, New York time~~local time for the Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period to be applicable thereto. If, upon the expiration of any Interest Period in respect of any ~~Borrowing~~Borrowing consisting of Eurodollar Advances, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ Eurodollar Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent ~~and the Lenders~~ may act without liability upon the basis of telephonic notice believed by the Agent ~~or any Lender~~ in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the Agent~~’s and the Lender’s~~ 's record of the terms of such telephonic notice. (fd) The Agent shall promptly (and in any event by the same time on the next succeeding Business Day as such notice is received) give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 3.01 with ~~different Interest Periods outstanding under~~ respect to the Revolving Credit Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Fuqua Enterprises Inc)

Funding Notices. (ai) Whenever ~~the~~ any Revolving Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ of Revolving Loans with respect to the Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~4.01(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Revolving Borrowing”"), such Notice of Revolving Borrowing to be given at its Payment Office prior to ~~11:00 A.M.~~ 12:00 noon (~~New York, New York time~~local time for the Agent) (x) ~~on the~~ one Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after ~~11:00 A.M. (New York, New York time)~~ 12:00 noon shall be deemed received on the next Business Day. Each Notice of Revolving Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), ~~and (C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto, and the Revolving Borrower for whom the proceeds of such Borrowing are requested. (bii) Whenever ~~the~~ any Revolving Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line ~~Bank notice, not later than 11:00 A.M.~~ Lender (~~New York, New York~~ with a copy to the Agent) prior written notice (or telephonic notice promptly confirmed in writing) of such Swing Line Borrowing (each a "Swing Line Borrowing Notice") prior to 10:00 a.m. (Eastern time) on the date of ~~the proposed~~ such Swing Line ~~Advance~~Borrowing. Each Swing Line Borrowing Notice shall specify the aggregate principal amount of the Swing Line Borrowing, the date of such ~~notice of a proposed~~ Swing Line Borrowing (which shall be a ~~“Notice of~~ Business Day), whether a Transaction Rate Quote is being requested and, if so, the Interest Period to be applicable thereto. If any Revolving Borrower requests a Transaction Rate Quote as aforesaid, then prior to 12:00 noon (local time for the Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York timeLender) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participationdate, the Swing Line ~~Bank represents and warrants~~ Lender shall furnish such Revolving Borrower (with a copy to ~~such other Lender that it is~~ the ~~legal and beneficial owner~~ Agent) with a quotation of ~~such~~ the interest rate being ~~assigned by it, but makes no other representation or warranty and assumes no responsibility~~ offered with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. Borrowing (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 Business Days’ prior written notice of each such Borrowing to be continued as Eurodollar Advances. Such notice (a “Notice of Continuation/Conversion”) shall be given to the Agent prior to 11:00 A.M. (New York, New York time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit C, and shall specify (i) the aggregate principal amount of the Revolving Loans to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific Revolving Loans to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender whether expressed as a ~~result~~ fixed rate of ~~any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth~~ interest in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.effect

Appears in 1 contract

Samples: Credit Agreement (Dyersburg Corp)

Funding Notices. (a) Whenever ~~the Borrower desires~~ Nelsxx xxxires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ with respect to the Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~4.01(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Agent) at its Payment Office (xi) ~~on the~~ one (1) Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, and (yii) 2 two (2) Business Days prior to the requested date of such Borrowing in the case of ~~Eurodollar~~ LIBOR Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or ~~Eurodollar Advances and, in the case of Eurodollar~~ LIBOR Advances~~, the Interest Period to be applicable thereto~~. (b) Whenever Nelsxx xxxires to convert all or a portion of an outstanding Borrowing under the ~~Borrower desires to make~~ Revolving Credit Commitments or a ~~Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ portion of the ~~proposed Swing Line Advance. Each such notice~~ Term Loans, which Borrowing consists of ~~a proposed Swing Line Borrowing (a “Notice~~ Base Rate Advances or LIBOR Advances, into one or more Borrowings consisting of ~~Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~Advances of another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of ~~Eurodollar~~ LIBOR Advances for a new Interest Period, it shall give the Agent at least 2 one (1) Business ~~Days’~~ Day's prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing being converted into or continued as Base Rate Advances, and at least two (2) Business Days prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as ~~Eurodollar~~ LIBOR Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 ~~A.M.~~ A.M (~~New York, New York time~~local time for the Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued as Base Rate Advances or ~~converted,~~ LIBOR Advances and (ivin the case of LIBOR Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the Borrower shall~~ Nelsxx xxxll have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the Borrower shall~~ Nelsxx xxxll be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Nelsxx xxx knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) ~~Eurodollar~~ LIBOR Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ LIBOR Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the Borrower’s obligation~~ Nelsxx'x xxxigation to confirm in writing any telephonic notice, the Agent ~~and the Lenders~~ may act without liability upon the basis of telephonic notice believed by the Agent ~~or any Lender~~ in good faith to be from ~~the Borrower prior~~ Nelsxx xxxor to receipt of written confirmation. In each such case, ~~the Borrower hereby~~ Nelsxx xxxeby waives the right to dispute the Agent~~’s and the Lender’s~~ 's record of the terms of such telephonic notice. (fd) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 4.01 with ~~different Interest Periods outstanding under~~ respect to the ~~Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower~~ Revolving Credit Commitments and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such dateTerm Loans.

Appears in 1 contract

Samples: Credit Agreement (Nelson Thomas Inc)

Funding Notices. (ai) Whenever ~~the~~ Borrower desires to ~~make~~ borrow a ~~Base Rate Borrowing or a Eurodollar Borrowing~~ Revolving Loan under ~~the Commitments~~ its Revolving Loan Commitment (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)), it shall give the ~~Agent~~ Lender prior written notice (or telephonic notice promptly confirmed in writing) of such ~~Borrowing~~ requested Revolving Loan (a “"Notice of Borrowing~~”),~~ ") at its Payment Office; such Notice of Borrowing to be given prior to (x) 11:00 A.M. (~~New York, New York time~~local time for the Lender) one (x1) ~~on the~~ Business Day of prior to the requested date of if such ~~Borrowing in the case~~ Revolving Loan will consist of Base Rate ~~Advances,~~ Advances and (y) 2 11:00 A.M. (local time for the Lender) three (3) Business Days prior to the requested date of if such ~~Borrowing in the case~~ Revolving Loan will consist of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of ~~the Borrowing~~such Revolving Loan, ~~(B)~~ the date ~~of Borrowing~~ on which such Revolving Loan will be borrowed (which shall be a Business Day), and ~~(C)~~ whether ~~the Borrowing is to~~ such Revolving Loan will consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a ~~Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ portion of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, Base Rate Advances into one or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation more Eurodollar Advances or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a ~~Borrowing consisting of~~ Eurodollar ~~Advances~~ Advance for a new Interest Period, it shall give the ~~Agent~~ Lender at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such ~~Borrowing~~ Advance to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York, New York time~~local time for the Lender) on the date ~~specified~~specified at the Payment Office of the Lender. Each such Notice of Continuation/Conversion shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any ~~Borrowing~~Eurodollar Advance, ~~the~~ Borrower shall have failed to deliver a the Notice of Continuation/~~Conversion (or a Notice of Continuation/Conversion was incomplete)~~Conversion, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such ~~Borrowing~~ Eurodollar Advance to a ~~Borrowing consisting of~~ Base Rate ~~Advances~~Advance. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no ~~Borrowing~~ Advances may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the ~~Agent and each of the Lenders~~ Lender shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion~~ any Eurodollar Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the ~~Agent and the Lenders~~ Lender may act without liability upon the basis of telephonic notice believed by the ~~Agent or any~~ Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the ~~Agent’s and the~~ Lender’s 's record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Bridge Revolving Credit Agreement (Hughes Supply Inc)

Funding Notices. (ai) Whenever ~~the Borrower~~ Intermet desires to ~~make~~ obtain a ~~Base Rate Borrowing or a Eurodollar Borrowing under~~ Syndicated Loan with respect to the Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)(i)), it shall give the Agent prior ------------------ written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior ------------------- to 11:00 ~~A.M.~~ AM (~~New York, New York time~~local time for the Agent) at its Payment Office (x) ~~on the Business Day of the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2~~ three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances, and (y) on the date of such Borrowing (which shall be a Business Day) in the case of a Borrowing consisting of Overnight Rate Advances or Base Rate Advances. Notices received after 11:00 ~~A.M. (New York, New York time)~~ AM shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances, Overnight Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (bii) Whenever ~~the Borrower~~ Intermet desires to ~~make~~ obtain a ~~Swing Line Borrowing~~Bid Rate Loan, it shall ~~give~~ notify the ~~Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on~~ Agent in accordance with the ~~date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately~~ procedure set forth in ~~writing, or telex or telecopier, specifying therein the requested~~ Section 2.08 ------------ hereof. (i) ~~date on which such Swing Line Advances~~ Whenever Intermet desires to ~~be made and (ii) amount~~ convert all or a portion of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line an outstanding Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of under the Commitments~~; (iii) any adverse change in the condition (financial~~ , which Borrowing consists of Base Rate Advances, Overnight Rate Advances or ~~otherwise)~~ Eurodollar Advances, into one or more Borrowings consisting of ~~the Borrower or any other Person; (iv) any breach~~ Advances of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Dayanother Type, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") --------------------------------- shall be given ~~to the Agent~~ prior to 11:00 ~~A.M.~~ AM (~~New York, New York time~~local time for the Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued ~~or converted~~Eurodollar Advances and, ~~and (iv)~~ if so, the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the Borrower~~ Intermet shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the Borrower~~ Intermet shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Intermet has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If No conversion of any Borrowing of Eurodollar Advances shall be permitted except on the ~~Borrower has complied~~ last day of the Interest Period in respect thereof. (ii) Upon the expiration of the applicable Interest Period with respect to Bid Rate Loans, Intermet shall repay such Loan in full in accordance with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodhereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the Borrower’s~~ Intermet's obligation to confirm in writing any telephonic notice, the Agent ~~and the Lenders~~ may act without liability upon the basis of telephonic notice believed by the Agent ~~or any Lender~~ in good faith to be from ~~the Borrower~~ Intermet prior to receipt of written confirmation. In each such case, ~~the Borrower~~ Intermet hereby waives the right to dispute the Agent~~’s and the Lender’s~~ 's record of the terms of such telephonic notice. (fd) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 3.01 ------------ with ~~different Interest Periods outstanding under~~ respect to the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Intermet Corp)

Funding Notices. (a) Whenever the Borrower desires to make a Base Rate Borrowing or a Eurodollar Borrowing under the ~~Commitments~~ 364-Day Line of Credit Commitment (other than one resulting from a continuation or conversion pursuant to Section ~~3.5(c) or (d~~3.6(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (New York, New York time) (x) on the Business Day of the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 two Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. (New York, New York time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable, shall be substantially in the form of Exhibit BC attached to this Agreement, and shall specify (A) the aggregate principal amount of the Borrowing, (B) the date of Borrowing (which shall be a Business Day), and (C) whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances and, in the case of Eurodollar Advances, the Interest Period to be applicable thereto. (b) Whenever the Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “"Notice of Swing Line Borrowing”") shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section ~~4.2~~4.02, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the ~~Swing Line~~ Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender~~’s Pro Rata~~ 's 364-Day Commitment Share (the “"Swing Line Participation”") and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s 's obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a ~~Revolving~~ 364-Day Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 two Business Days’ ' prior written notice of each such Borrowing to be continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given to the Agent prior to 11:00 A.M. (New York, New York time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit CD attached to this Agreement, and shall specify (i) the aggregate principal amount of the ~~Revolving Loans~~ Advances to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific ~~Revolving Loans~~ Advances to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this ~~Section 3.5(c),~~ subsection (b) then the ~~Revolving Loans~~ Advances identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the 364-Day Notes or the Tranche A Term Notes to a Eurodollar Borrowing; provided, however, that ~~(i)~~ the Borrower shall give the Agent a Notice of Continuation/Conversion 2 two Business Days prior to such a ~~conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such~~ conversion~~, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing~~. In each ~~case,~~ case such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific ~~Revolving Loans~~ Advances to be converted. (e) Without in any way limiting the Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5~~3.6. (g) There shall not be at any one time more than 8 eight (8) Eurodollar Advances with different Interest Periods outstanding under each of (i) the ~~Commitments~~364-Day Line of Credit Commitment or (ii) the Tranche A Term Loan Commitment. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such ~~Revolving Loan~~ Advance the applicable conditions set forth in Article 4IV, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the ~~Swing Line Bank~~ Agent in the case of ~~Swing Line~~ Advances by the ~~Swing Line Bank~~ Agent pursuant to Section ~~2.1(b~~2.1(c)) to fund such ~~Revolving Loan~~ Advance when such ~~Revolving Loan~~Advance, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Gold Kist Inc)

Funding Notices. (a) Whenever the Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ of Revolving Loans with respect to the Revolving Credit Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.1.(b)), it shall give the Agent prior written notice in substantially the same form as set forth in Exhibit E (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given at Agent's Payment Office (x) prior to 11:00 ~~A.M.~~ a.m. (~~New York~~Nashville, ~~New York~~ Tennessee time~~) (x~~) on the Business Day of which is the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 prior to 11:00 a.m. (Nashville, Tennessee time) three (3) Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 ~~A.M.~~ a.m. (~~New York~~Nashville, ~~New York~~ Tennessee time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a ~~Swing Line Borrowing, it shall give~~ portion of an outstanding Borrowing under the ~~Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ Revolving Credit Commitments consisting of ~~the proposed Swing Line Advance. Each such notice~~ Base Rate Advances into a Borrowing consisting of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~Eurodollar Advances, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 three (3) Business Days’ ' prior written notice in substantially the same form as Exhibit F (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”) shall be given to the Agent prior to 11:00 A.M. (New York, New York time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit C, and shall specify (i) the aggregate principal amount of the Revolving Loans to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific Revolving Loans to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.of

Appears in 1 contract

Samples: Credit Agreement (Childrens Comprehensive Services Inc)

Funding Notices. (a) Whenever ~~the Borrower~~ Xxxxxx desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ with respect to the Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Agent) at its Payment Office (xi) ~~on the~~ one (1) Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, and (yii) 2 two (2) Business Days prior to the requested date of such Borrowing in the case of ~~Eurodollar~~ LIBOR Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or ~~Eurodollar Advances and, in the case of Eurodollar~~ LIBOR Advances~~, the Interest Period to be applicable thereto~~. (b) Whenever ~~the Borrower~~ Xxxxxx desires to ~~make~~ convert all or a ~~Swing Line Borrowing~~portion of an outstanding Borrowing under the Revolving Loan Commitments, ~~it shall give the Swing Line Bank notice~~which Borrowing consists of Base Rate Advances or LIBOR Advances, ~~not later than 11:00 A.M. (New York, New York time) on the date~~ into one or more Borrowings consisting of ~~the proposed Swing Line Advance. Each such notice~~ Advances of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of ~~Eurodollar~~ LIBOR Advances for a new Interest Period, it shall give the Agent at least 2 one (1) Business ~~Days’~~ Day's prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing being converted into or continued as Base Rate Advances, and at least two (2) Business Days prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as ~~Eurodollar~~ LIBOR Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 ~~A.M.~~ A.M (~~New York, New York time~~local time for the Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued as Base Rate Advances or ~~converted,~~ LIBOR Advances and (ivin the case of LIBOR Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the Borrower~~ Xxxxxx shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the Borrower~~ Xxxxxx shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Xxxxxx has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) ~~Eurodollar~~ LIBOR Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ LIBOR Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the Borrower’s~~ Xxxxxx'x obligation to confirm in writing any telephonic notice, the Agent ~~and the Lenders~~ may act without liability upon the basis of telephonic notice believed by the Agent ~~or any Lender~~ in good faith to be from ~~the Borrower~~ Xxxxxx prior to receipt of written confirmation. In each such case, ~~the Borrower~~ Xxxxxx hereby waives the right to dispute the Agent~~’s and the Lender’s~~ 's record of the terms of such telephonic notice. (fd) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 3.01 with ~~different Interest Periods outstanding under~~ respect to the Revolving Loan Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Nelson Thomas Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing~~ of Loans under ~~the Commitments (other than one resulting from a continuation or conversion pursuant to Section 3.5(c) or (d))~~its Commitments, it shall give ~~the Agent~~ both Lenders prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) at its Payment Office (x) ~~on the~~ one Business Day of prior to the requested date of such Borrowing in the case of Base Rate ~~Advances~~Ad vances, and (y) 2 three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end portion of an ~~Interest Period, if the Borrower desires~~ outstanding Borrowing of Loans under its Commitments which Borrowing consists of Base Rate Advances into one or more Borrowings consisting of Eurodollar Advances or to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the ~~Agent~~ Lenders at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) on the date ~~specified~~specified at the Payment Office of the Lenders. Each such Notice of Continuation/Conversion shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Continuation/~~Conversion (or a Notice of Continuation/Conversion was incomplete)~~Conversion, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless ~~the Agent and~~ each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ Eurodollar Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, ~~the Agent and~~ the Lenders may act without liability upon the basis of telephonic notice believed by the ~~Agent or any Lender~~ Lenders in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute ~~the Agent’s and the~~ each Lender’s 's record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Bridge Credit Agreement (Hughes Supply Inc)

Funding Notices. (a) Whenever the Borrower desires to make a Base Rate Borrowing or a Eurodollar Borrowing under the ~~Commitments~~ Commitment (other than one resulting from a continuation or conversion pursuant to Section ~~3.5(c) or (d~~3.6(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (New York, New York time) (x) on the Business Day of the requested date of such Borrowing in the case of Base Rate ~~Advances~~Loans, and (y) 2 two Business Days prior to the requested date of such Borrowing in the case of Eurodollar ~~Advances~~Loans. Notices received after 11:00 A.M. (New York, New York time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable, shall be substantially in the form of Exhibit BF attached to this Agreement, and shall specify (A) the aggregate principal amount of the Borrowing, (B) the date of Borrowing (which shall be a Business Day), and (C) whether the Borrowing is to consist of Base Rate ~~Advances~~ Loans or Eurodollar ~~Advances~~ Loans and, in the case of Eurodollar ~~Advances~~Loans, the Interest Period to be applicable thereto. (b) Whenever the Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day.[Intentionally Omitted] (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar ~~Advances~~ Loans for a new Interest Period, it shall give the Agent at least 2 two Business Days’ ' prior written notice of each such Borrowing to be continued as Eurodollar ~~Advances~~Loans. Such notice (a “"Notice of Continuation/Conversion”") shall be given to the Agent prior to 11:00 A.M. (New York, New York time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit CG attached to this Agreement, and shall specify (i) the aggregate principal amount of the ~~Revolving~~ Loans to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific ~~Revolving~~ Loans to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate ~~Advances~~Loans. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar ~~Advances~~ Loans unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this ~~Section 3.5(c),~~ subsection (b) then the ~~Revolving~~ Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing ~~under the Notes~~ to a Eurodollar Borrowing; provided, however, that ~~(i)~~ the Borrower shall give the Agent a Notice of Continuation/Conversion 2 two Business Days prior to such a ~~conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such~~ conversion~~, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing~~. In each ~~case,~~ case such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific ~~Revolving~~ Loans to be converted. (e) Without in any way limiting the Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5~~3.6. (g) There shall not be at any one time more than 8 four (4) Eurodollar ~~Advances~~ Loans with different Interest Periods ~~outstanding under the Commitments~~outstanding. (h) Each Notice of ~~Borrowing and Notice of Swing Line~~ Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such ~~Revolving~~ Loan the applicable conditions set forth in Article 4IV, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender ~~(and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b))~~ to fund such ~~Revolving~~ Loan when such ~~Revolving~~ Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Gold Kist Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate Borrowing or a Eurodollar~~ Borrowing under ~~the Commitments (other than one resulting from a continuation or conversion pursuant to Section 3.5(c) or (d))~~its Term Credit Commitment, it shall give the ~~Agent~~ Lender prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing~~”),~~ ") at its Payment Office such Notice of Borrowing to be given prior to (x) 11:00 A.M. (~~New York, New York time~~local time for the Lender) one (x1) ~~on the~~ Business Day of prior to the requested date of such Borrowing in the case of Base Rate ~~Advances,~~ Advances and (y) 2 11:00 A.M. (local time for the Lender) three (3) Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ for Base Rate Advances and Eurodollar Advances shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end portion of an ~~Interest Period~~outstanding Borrowing of Term Credit Loans, ~~if the Borrower desires~~ which Borrowing consists of Base Rate Advances, into one or more Borrowings consisting of Eurodollar Advances or to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the ~~Agent~~ Lender at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York, New York time~~local time for the Lender) on the date ~~specified~~specified at the Payment Office of the Lender. Each such Notice of Continuation/Conversion shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Continuation/~~Conversion (or a Notice of Continuation/Conversion was incomplete)~~Conversion, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to as a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the ~~Agent and each of the Lenders~~ Lender shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ Eurodollar Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the ~~Agent and the Lenders~~ Lender may act without liability upon the basis of telephonic notice believed by the ~~Agent or any~~ Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the ~~Agent’s and the~~ Lender’s 's record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Real Estate Term Credit Agreement (Hughes Supply Inc)

Funding Notices. (a) Whenever the Borrower desires to make a Base Rate Borrowing or a Eurodollar Borrowing ~~under the Commitments~~ (other than one resulting from a continuation or conversion pursuant to Section ~~3.5(c) or (d~~3.6(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) (x) on the Business Day of the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 two Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable, shall be substantially in the form of Exhibit BD attached to this Agreement, and shall specify (A) the aggregate principal amount of the Borrowing, (B) the date of Borrowing (which shall be a Business Day), ~~and~~ (C) whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances and, in the case of Eurodollar Advances, the Interest Period to be applicable thereto, and (D) whether the Borrowing is to be advanced under the Revolving Loan Commitment or the 364-Day Loan Commitment (or a combination thereof). (b) Whenever the Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 two Business Days’ ' prior written notice of each such Borrowing to be continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given to the Agent prior to 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit CE attached to this Agreement, and shall specify (i) the aggregate principal amount of the ~~Revolving Loans~~ Advances to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific ~~Revolving Loans~~ Advances to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar ~~Advances~~ Ad vances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this ~~Section 3.5(c),~~ subsection (b) then the ~~Revolving Loans~~ Advances identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (dc) The Borrower may at any time convert a Base Rate Borrowing under the ~~Notes~~ Revolving Notes, the 364-Day Notes, or, as to any amounts outstanding after November 30, 1998, the Term Notes, to a Eurodollar Borrowing; provided, however, that ~~(i)~~ the Borrower shall give the Agent a Notice of Continuation/Conversion 2 two Business Days prior to such a ~~conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such~~ conversion~~, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing~~. In each ~~case,~~ case such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific ~~Revolving Loans~~ Advances to be converted. (ed) Without in any way limiting the Borrower~~’s obligation~~ 's obliga tion to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or ~~any~~ the Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (fe) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5~~3.6. (gf) There shall not be at any one time more than 8 eight (8) Eurodollar Advances with different Interest Periods outstanding under each of (i) the ~~Commitments~~Revolving Credit Commitment, or (ii) the 364-Day Line of Credit Commitment, or (iii) the Term Commitment. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Gold Kist Inc)

Funding Notices. (a) Whenever the Borrower desires to ~~make a Base Rate Borrowing or a Eurodollar Borrowing under the Commitments~~ request an Advance hereunder (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.02(b)), it shall give ~~the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (~~a “Notice of ~~Borrowing”)~~Borrowing to the Agent, and with respect to a Series B Commercial Paper Loan or a Series C Commercial Paper Loan, a copy of such Notice of Borrowing to ~~be given~~ the Co-Agent and the Depositary, prior to ~~11:00 A.M. (New York,~~ noon New York ~~time)~~ City time at the Agent's or the Co-Agent's Payment Office, as the case may be, (xi) on ~~the Business Day of~~ the requested date of such Borrowing in the case of Base Rate Advances, and (yii) 2 three (3) Business Days prior to the requested date of such ~~Borrowing~~ Advance in the case of Eurodollar Rate Advances. Notices received after ~~11:00 A.M. (New York,~~ noon New York ~~time)~~ City time shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the ~~Borrowing~~Advance, ~~(B)~~ the date of ~~Borrowing~~ Advance (which shall be a Business Day), ) and ~~(C)~~ whether the ~~Borrowing~~ Advance is to consist of a Base Rate ~~Advances~~ Advance or Eurodollar ~~Advances and,~~ Rate Advance and (in the case of a Eurodollar ~~Advances,~~ Rate Advance) the Interest Period to be applicable thereto. Each Notice of Borrowing relating to a Series A Loan shall also include a computation demonstrating that, after giving effect to the requested Borrowing, the sum of (i) the aggregate principal amount of all Series A Revolving Credit Loans Outstanding plus (ii) the aggregate principal amount of all loans outstanding under the Bid Facility immediately after the making of any requested Series A Revolving Credit Loan would not exceed the Total Revolving Credit Commitment. Each Notice of Borrowing relating to a Series B Commercial Paper Loan and Series C Commercial Paper Loan shall also include a computation demonstrating that, after giving effect to the requested Borrowing, the sum of (i) the aggregate principal amount of all Series B Commercial Paper Loans Outstanding and all Series C Commercial Paper Loans Outstanding immediately after the making of any requested Series B Commercial Paper Loan or Series C Commercial Paper Loan, as the case may be, plus (ii) the aggregate Face Amount of Outstanding Commercial Paper Notes would not exceed the Total Commercial Paper Commitment. (b) Whenever the Borrower desires to ~~make~~ convert all or a ~~Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ portion of ~~the proposed Swing Line Advance. Each such notice~~ an Outstanding Advance consisting of a ~~proposed Swing Line Borrowing (~~Base Rate Advance or a ~~“Notice~~ Eurodollar Rate Advance into one or more borrowings consisting of ~~Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~Advances of another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue ~~outstanding~~ Outstanding a ~~Borrowing consisting of~~ Eurodollar ~~Advances~~ Rate Advance for a new Interest Period, it shall give a Notice of Conversion/Continuation to the Agent at least 2 three (3) Business ~~Days’~~ Days prior ~~written notice~~ to the conversion into or continuation of ~~each such Borrowing to be continued~~ an Advance as Eurodollar ~~Advances~~Rate Advance. Such ~~notice (a “~~Notice of ~~Continuation/Conversion”)~~ Conversion/ Continuation shall be given ~~to the Agent~~ prior to ~~11:00 A.M. (New York,~~ noon New York ~~time)~~ City time on the date specified. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued ~~or converted,~~ as Eurodollar Rate Advances and ~~(iv)~~ the Interest Period to be applicable thereto. If, upon the expiration of any Interest Period in respect of any ~~Borrowing~~Advance, the Borrower shall have ~~failed~~ failed, or pursuant to the following sentence be unable, to properly deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then~~ the Borrower shall be deemed to have elected to convert or continue such ~~Borrowing~~ Advance to ~~a Borrowing~~ an Advance consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be ~~continuing,~~ continuing no ~~Borrowing~~ Advance may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) a Eurodollar ~~Advances unless~~ Rate Advance. No conversion of any Eurodollar Rate Advance shall be permitted except on the ~~Agent and each~~ last day of the ~~Lenders shall have otherwise consented~~ Interest Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting the Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent ~~and~~ or the ~~Lenders~~ Co-Agent, as the case may be, may act without liability upon the basis of telephonic notice believed by the Agent or ~~any Lender~~ the Co-Agent in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the ~~Borrower hereby waives~~ Agent's or the ~~right to dispute the~~ Co-Agent~~’s and the Lender’s~~ 's record of the terms of such telephonic ~~notice~~notice shall, absent manifest error, be final, conclusive and binding for all purposes. (fd) The Agent or the Co-Agent, as appropriate, shall promptly (and in no event later than 10:00 a.m. New York City time at least two (2) Business Days before the date of a requested Eurodollar Rate Advance) give each ~~Lender~~ Revolving Credit Bank or Commercial Paper Bank, as appropriate, telephonic notice ~~by telephone~~ (confirmed in writing) or written notice by telecopy ~~or facsimile transmission~~ of the matters covered by the notices given to the Agent or the Co-Agent pursuant to this ~~Section 3.5~~Section. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Sci Systems Inc)

Funding Notices. (a) On Revolving Loan. Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ on the ~~Commitments (other than one resulting from a continuation or conversion pursuant to Section 3.5(c) or (d))~~Revolving Loan Commitment, it shall give the ~~Agent~~ Lender prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “Notice of Borrowing”), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Lender) at its Lending Office (xi) ~~on the~~ one (1) Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, and (yii) 2 two (2) Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) ~~Whenever~~ On Term Loan. In regard to the ~~Borrower desires to make a Swing Line Borrowing~~Term Loan, it the Lender shall ~~give~~ fully fund the ~~Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time)~~ Loan Commitment on the date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business DayBorrower. (c) ~~At the end of an Interest Period, if the~~ Whenever Borrower desires to convert one or more Borrowings of one Type into one or more Borrowings of another Type, or to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest ~~Period~~Period (whether for the Revolving Loan or for the Term Loan), it shall give ~~the Agent at least 2 Business Days’~~ Lender prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted or continued ~~as Eurodollar Advances. Such notice~~ (a “Notice of Conversion/Continuation”), such Notice of Conversion/~~Conversion”) shall~~ Continuation to be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York~~local time for the Lender) at its Lending Office (i) one (1) Business Day prior to the requested date of such Borrowing in the case of the continuation into a Base Rate Advance, ~~New York time~~and (ii) two (2) Business Days prior to the requested date of such Borrowing in the case of a continuation of or conversion into Eurodollar Advances. Notices received after 11:00 A.M. shall be deemed received on the ~~date specified~~next Business Day. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Borrowing to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation (which shall be a Business Day), whether the Borrowing is being converted into or ~~conversion, (iii) the specific Revolving Loans to be~~ continued ~~or converted,~~ as Eurodollar Advances and (ivin the case of Eurodollar Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to ~~convert~~ continue such Borrowing as a Eurodollar Advance for the same interest Period then applicable to a said Borrowing. No conversion of any Borrowing ~~consisting~~ of ~~Base Rate Advances. So long as any Default or Event of Default~~ Eurodollar Advances shall ~~have occurred and~~ be ~~continuing, no Borrowing may be continued as or converted to (upon expiration~~ permitted except on the last day of the ~~current~~ Interest ~~Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented~~ Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting ~~the~~ Borrower’s obligation to confirm in writing any telephonic notice, the ~~Agent and the Lenders~~ Lender may act without liability upon the basis of telephonic notice believed by the ~~Agent or any~~ Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute ~~the Agent’s and~~ the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving and Term Loan Agreement

Funding Notices. (ai) Whenever ~~the~~ Borrower desires to ~~make~~ obtain a ~~Base Rate Borrowing or a Eurodollar Borrowing under~~ Syndicated Loan with respect to the Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to (ii) Whenever Borrower desires to ~~Section 3.5(c) or (d))~~obtain a Swing Line Loan, it shall ~~give~~ notify the Swing Line Lender, with a copy to the Agent, in accordance with the procedure set forth in Section 2.08 hereof. (iii) Whenever Borrower desires to obtain a Bid Rate Loan, it shall notify the Agent ~~prior written notice~~ in accordance with the procedure set forth in Section 2.09 hereof. (i) Whenever Borrower desires to convert all or ~~telephonic notice promptly confirmed in writing)~~ a portion of ~~such~~ an outstanding Borrowing ~~(a “Notice of Borrowing”)~~under the Commitments, ~~such Notice of~~ which Borrowing to be given prior to 11:00 A.M. (New York, New York time) (x) on the Business Day of the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. (New York, New York time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable, shall be substantially in the form of Exhibit B, and shall specify (A) the aggregate principal amount of the Borrowing, (B) the date of Borrowing (which shall be a Business Day), and (C) whether the Borrowing is to consist consists of Base Rate Advances or Eurodollar ~~Advances and, in the case of Eurodollar~~ Advances, the Interest Period to be applicable thereto. (b) Whenever the Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date into one or more Borrowings consisting of ~~the proposed Swing Line Advance. Each such notice~~ Advances of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 ~~A.M.~~ AM (~~New York, New York time~~local time for the Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued ~~or converted~~Eurodollar Advances and, ~~and (iv)~~ if so, the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If No conversion of any Borrowing of Eurodollar Advances shall be permitted except on the last day of the Interest Period in respect thereof. (ii) Upon the expiration of the applicable Interest Period with respect to Swing Line Loans, Borrower ~~has complied~~ shall repay such Loan in full in accordance with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodhereof. (diii) ~~The Borrower may at any time convert a Base~~ Upon the expiration of the applicable Interest Period with respect to Bid Rate ~~Borrowing under the Notes to a Eurodollar Borrowing; provided~~Loans, ~~however, that (i) the~~ Borrower shall ~~give the Agent a Notice of Continuation/Conversion 2 Business Days prior to~~ repay such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented Loan in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without full in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of accordance with the terms ~~of such telephonic notice~~hereof. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Haverty Furniture Companies Inc)

Funding Notices. (a) Whenever ~~the Borrower~~ Intermet desires to ~~make~~ obtain a ~~Base Rate Borrowing or a Eurodollar Borrowing under~~ Syndicated Loan with respect to the Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)), it shall give the Administrative Agent ~~prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (~~a “duly completed Notice of ~~Borrowing”)~~Borrowing in the form of Exhibit D-1 attached hereto, such Notice of Borrowing to be given prior to 11:00 ~~A.M.~~ AM (~~New York, New York time~~local time for the Administrative Agent) at its Payment Office (x) ~~on the Business Day of the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2~~ three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances, and (y) on the date of such Borrowing (which shall be a Business Day) in the case of a Borrowing consisting of Base Rate Advances. Notices received after 11:00 ~~A.M.~~ AM (~~New York, New York time~~local time for the Administrative Agent) shall be deemed received on the next Business Day. A Notice of Borrowing that does not conform substantially to the format of Exhibit D-1 may be rejected in the Administrative Agent's sole discretion, and the Administrative Agent shall notify Intermet of such rejection by telecopy not later than 12:00 noon (Atlanta, Georgia time) on the date of receipt. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the Borrower~~ Intermet desires to ~~make~~ convert all or a ~~Swing Line~~ portion of an outstanding Borrowing, ~~it shall give the Swing Line Bank notice~~which Borrowing consists of Base Rate Advances or Eurodollar Advances, ~~not later than 11:00 A.M. (New York, New York time) on the date~~ into one or more Borrowings consisting of ~~the proposed Swing Line Advance. Each such notice~~ Advances of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Administrative Agent a duly completed Notice of Conversion/Continuation in the form of Exhibit D-2 attached hereto, such Notice of Conversion/Continuation to be given at least 2 three Business ~~Days’~~ Days prior ~~written notice of~~ to each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “Notice of Continuation/Conversion”) shall be given to the Agent prior to 11:00 A.M. (New York, New York time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit C, and shall specify (i) the aggregate principal amount of the Revolving Loans to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific Revolving Loans to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.Eurodollar

Appears in 1 contract

Samples: Credit Agreement (Intermet Corp)

Funding Notices. (ai) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing~~ of Syndicate Loans under ~~the~~ its Line of Credit Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)(i)), it shall give the Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing~~”),~~ ") at its Payment Office such Notice of Borrowing to be given prior to (x) 11:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) one (x1) ~~on the~~ Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, ~~and~~ (y) 2 11:00 A.M. (local time for the Administrative Agent) three (3) Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances and (z) prior to 1:00 P.M. (local time for the Administrative Agent) on the requested date of such Borrowing in the case of Competitive Bid Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ for Base Rate Advances and Eurodollar Advances and 1:00 P.M. for Competitive Bid Advances shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (bii) Whenever ~~the~~ Borrower desires to make a ~~Swing~~ Borrowing of Competitive Bid Loans under its Line ~~Borrowing~~of Credit Commitments (other than one resulting from a conversion or continuation pursuant to Section 3.01(b)(ii)), it shall give the ~~Swing Line Bank notice~~Administrative Agent notice that the Lenders are requested to provide Competitive Bid Rates for Interest Periods identified by Borrower, such Interest Periods not ~~later than 11:00 A.M. (New York~~to exceed 180 days. Notices must comply with notice requirements of each respective Lender, ~~New York~~ which shall be communicated by Lenders to Borrower from time to time~~) on~~ . Each Lender in its discretion may, but shall not be obligated to, submit a quote to the ~~date~~ Borrower in connection with such request. The Borrower shall then be entitled, in its sole discretion, to elect to incur all or any part of the ~~proposed Swing Line Advance~~Competitive Bid Loan offered by one or more of the Lenders that have elected to provide quotes for any of the Interest Periods and at the rate(s) quoted by such Lender(s). ~~Each~~ The Competitive Bid Loans incurred by the Borrower in connection with such ~~notice of~~ a ~~proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”)~~ request for quotes shall ~~be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested~~ not exceed (i) ~~date on which such Swing~~ with respect to all Lenders then providing quotes, the then unutilized Line ~~Advances to be made~~ of Credit Commitments of all Lenders as a group, and (ii) with respect to each Lender providing a quote, the amount of bid by such ~~Swing Line Advance~~Lender in connection with such Lender's quote. The ~~Swing Line Bank~~Borrower shall notify the Administrative Agent and such Lender or Lenders of its election in accordance with the procedures established with such Lender or Lenders, ~~upon fulfillment~~ having no obligation to report the terms thereof; provided, however, that if any Borrowing of Eurodollar Advances -------- ------- must be made as Base Rate Advances as a result of a determination made by the ~~applicable conditions set forth~~ Administrative Agent pursuant to Section ~~4.2~~3.09, ~~will make the amount thereof available,~~ such Notice of Borrowing may be revoked by Borrower no later than ~~4:00 P.M.~~ one (~~New York, New York time~~1) ~~on such~~ Business ~~Day,~~ Day prior to the ~~Borrower in same day funds by crediting the account~~ date of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, funding. (i) ~~any set-off, counterclaim, recoupment, defense~~ Whenever Borrower desires to convert all or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end portion of an ~~Interest Period~~outstanding Borrowing of Syndicate Loans under its Line of Credit Commitments, ~~if the Borrower desires~~ which Borrowing consists of Base Rate Advances into one or more Borrowings consisting of Eurodollar Advances or to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Administrative Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) on the date ~~specified~~specified at the Payment Office of the Administrative Agent. Each such Notice of Continuation/Conversion shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Continuation/~~Conversion (or a Notice of Continuation/Conversion was incomplete)~~Conversion, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Administrative Agent and each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ Eurodollar Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) ~~so long as any Default~~ Whenever Borrower desires to continue all or ~~Event~~ a portion of ~~Default shall have occurred and be continuing at the time~~ an outstanding Borrowing of ~~such conversion~~Competitive Bid Loans under its Line of Credit Commitments for a new Interest Period, ~~no Borrowing~~ it may ~~be converted unless the Agent and each of~~ request that the Lenders ~~shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower~~ provide quotes for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank Competitive Bid Rates in the ~~case of Swing Line Advances by the Swing Line Bank pursuant to~~ same manner prescribed in Section ~~2.1(b~~3.01(a)(ii)~~) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.~~

Appears in 1 contract

Samples: Line of Credit Agreement (Hughes Supply Inc)

Funding Notices. (ai) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under the Commitments~~ consisting of Syndicate Revolving Loans (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to ~~Section 3.5(c) or (d~~SECTION 3.1(b)(i)), it shall give the Administrative Agent prior written notice (or telephonic notice ~~promptly~~ confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to ~~11:00 A.M.~~ 12:00 noon (~~New York, New York~~ Florida time) at its Payment Office (xA) on the same Business Day of the requested date of such Borrowing in the case of Revolving Loans comprised of Base Rate Advances, and (yB) 2 three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after ~~11:00 A.M. (New York, New York time)~~ 12:00 noon shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), ~~and (C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (bii) Whenever ~~the~~ Borrower desires to make a ~~Swing Line Borrowing~~Borrowing consisting of a Competitive Bid Revolving Loan (other than one resulting from a conversion or continuation pursuant to SECTION 3.1(b)(ii)), it shall give the ~~Swing Line Bank notice,~~ Administrative Agent prior written notice by facsimile not later than 10:00 A.M. (Florida time) (a "Notice of Competitive Bid Borrowing") not less than three Business Days prior to the requested date of such Borrowing in the case of Libor Bid Loans and one Business Day prior to the requested date of such Borrowing in the case of Fixed Rate Bid Loans and shall request that the Lenders provide Competitive Bid Rates for Interest Periods identified by Borrower of not less than seven (7) days nor more than 183 days. The Administrative Agent shall give the Lenders said "Notice of Competitive Bid Borrowing" not later than 11:00 A.M. (~~New York, New York~~ Florida time) on the same Business Day such notice is received from Borrower. Alternatively, at Borrower's option, said Notice of Competitive Bid Borrowing shall be furnished directly to the Lenders. Notices furnished directly to the Lenders must be delivered by facsimile not later than 11:00 A.M. (Florida time) not less than three Business Days prior to the requested date of such Borrowing in the ~~proposed Swing Line Advance~~case of Libor Bid Loans and one Business Day prior to the requested date of such Borrowing in the case of Fixed Rate Bid Loans. Each ~~such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone~~Lender in its discretion may, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and but shall not be ~~affected by any circumstance~~obligated to, ~~including~~submit an irrevocable quote to the Administrative Agent or Borrower, ~~without limitation~~whichever is applicable, ~~(i) any set-off, counterclaim, recoupment, defense~~ in connection with such request. Each Lender shall give the Administrative Agent or ~~other right which such Lender or any other Person may have against~~ Borrower its Competitive Bid Rates for the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement Interest Periods identified by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than ~~1:00 P.M.~~ 9:30 A.M. (~~New York, New York~~ Florida time) ~~on such~~ two Business ~~Day, or (ii)~~ Days prior to the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner requested date of such ~~interest being assigned by it, but makes no other representation or warranty~~ Borrowing in the case of Libor Bid Loans and ~~assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall~~ not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 Business Days’ prior written notice of each such Borrowing to be continued as Eurodollar Advances. Such notice (a “Notice of Continuation/Conversion”) shall be given to the Agent prior to 11:00 later than 9:30 A.M. (~~New York, New York~~ Florida time) on the requested date ~~specified~~of such Borrowing in the case of Fixed Rate Bid Loans. ~~Each~~ If the Competitive Bid Rates are given to the Administrative Agent, the Administrative Agent shall give such Competitive Bid Rates to the Borrower no later than 10:00 A.M. (Florida time) on the same day it receives such Competitive Bid Rates. In the event such Notice of ~~Continuation/Conversion shall be irrevocable, shall be in~~ Competitive Bid Borrowing is furnished to the ~~form of Exhibit C,~~ Administrative Agent and ~~shall specify (i)~~ the ~~aggregate principal amount of the Revolving Loans~~ Administrative Agent wishes to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific Revolving Loans to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver submit a ~~Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete)~~Competitive Bid Rate, then the Administrative Agent shall so submit its Competitive Bid Rate to Borrower not later than 5:00 P.M. (Florida time) the same day of receipt of said Notice of Competitive Bid Borrowing and prior to the Administrative Agent's receipt of any Competitive Bid Rates from any other Lender. The Borrower shall then be ~~deemed~~ entitled, in its sole discretion, to elect to incur all or any part of the Competitive Bid Revolving Loans offered by one or more of the Lenders that have elected to ~~convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as~~ provide quotes for any ~~Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration~~ of the ~~current~~ Interest ~~Period~~Periods and at the rate(s) ~~Eurodollar Advances unless~~ quoted by such Lender(s), but in any event in ascending order of the ~~Agent and each~~ Competitive Bid Rates offered by all of the Lenders ~~shall have otherwise consented in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the~~ responding to such Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Competitive Bid Borrowing; provided, however, ~~that~~ in the event two or more Lenders submit identical quotes and the Borrower elects to incur all or any part of the Competitive Bid Revolving Loans at such identical quotes, such Borrowing shall be from said Lenders on a pro rata basis determined by the amounts offered by such Lenders. The Competitive Bid Revolving Loans incurred by the Borrower in connection with such a request for quotes shall not exceed (i) with respect to all Lenders then providing quotes, the ~~Borrower shall give the Agent~~ then unutilized Revolving Loan Commitment of all Lenders as a ~~Notice of Continuation/Conversion 2 Business Days prior to such a conversion~~ group, and (ii) ~~so long as any Default or Event of Default~~ with respect to each Lender providing a quote, the amount bid by such Lender in connection with such Lender's quote. The Borrower shall ~~have occurred and be continuing at~~ notify the ~~time of such conversion, no Borrowing may be converted unless the~~ Administrative Agent and ~~each~~ such Lender or Lenders of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice its election by telephone (and confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.writing before 5:00 p.m.

Appears in 1 contract

Samples: 364 Day Revolving Credit Agreement (Office Depot Inc)

Funding Notices. (ai) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing~~ of Syndicate Loans under ~~the~~ its Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)(i)), it shall give the Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing~~”),~~ ") at its Payment Office such Notice of Borrowing to be given prior to (x) 11:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) one (x1) ~~on the~~ Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, ~~and~~ (y) 2 11:00 A.M. (local time for the Administrative Agent) three (3) Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances and (z) prior to 1:00 P.M. (local time for the Administrative Agent) on the requested date of such Borrowing in the case of Competitive Bid Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ for Base Rate Advances and Eurodollar Advances and 1:00 P.M. for Competitive Bid Advances shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (bii) Whenever ~~the~~ Borrower desires to make a ~~Swing Line Borrowing~~Borrowing of Competitive Bid Loans under its Revolving Loan Commitments (other than one resulting from a conversion or continuation pursuant to Section 3.01(b)(ii)), it shall give the ~~Swing Line Bank notice~~Administrative Agent notice that the Lenders are requested to provide Competitive Bid Rates for Interest Periods identified by Borrower, such Interest Periods not ~~later than 11:00 A.M. (New York~~to exceed 180 days. Notices must comply with notice requirements of each respective Lender, ~~New York~~ which shall be communicated by Lenders to Borrower from time to time~~) on~~ . Each Lender in its discretion may, but shall not be obligated to, submit a quote to the ~~date~~ Borrower in connection with such request. The Borrower shall then be entitled, in its sole discretion, to elect to incur all or any part of the ~~proposed Swing Line Advance~~Competitive Bid Loan offered by one or more of the Lenders that have elected to provide quotes for any of the Interest Periods and at the rate(s) quoted by such Lender(s). ~~Each~~ The Competitive Bid Loans incurred by the Borrower in connection with such ~~notice of~~ a ~~proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”)~~ request for quotes shall ~~be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested~~ not exceed (i) ~~date on which such Swing Line Advances~~ with respect to ~~be made~~ all Lenders then providing quotes, the then unutilized Revolving Loan Commitments of all Lenders as a group, and (ii) with respect to each Lender providing a quote, the amount of bid by such ~~Swing Line Advance~~Lender in connection with such Lender's quote. The ~~Swing Line Bank~~Borrower shall notify the Administrative Agent and such Lender or Lenders of its election in accordance with the procedures established with such Lender or Lenders, ~~upon fulfillment~~ having no obligation to report the terms thereof; provided, however, that if any Borrowing of Eurodollar Advances must be made as Base Rate Advances as a result of a determination made by the ~~applicable conditions set forth~~ Administrative Agent pursuant to Section ~~4.2~~3.09, ~~will make the amount thereof available,~~ such Notice of Borrowing may be revoked by Borrower no later than ~~4:00 P.M.~~ one (~~New York, New York time~~1) ~~on such~~ Business ~~Day,~~ Day prior to the ~~Borrower in same day funds by crediting the account~~ date of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, funding. (i) ~~any set-off, counterclaim, recoupment, defense~~ Whenever Borrower desires to convert all or ~~other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance~~ a portion of ~~Default or~~ an ~~Event~~ outstanding Borrowing of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Syndicate Loans under its Revolving Loan ~~made by such Lender on such Business Day for purposes~~ Commitments, which Borrowing consists of ~~the Agreement, and the outstanding principal amount~~ Base Rate Advances into one or more Borrowings consisting of ~~the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires~~ Eurodollar Advances or to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Administrative Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) on the date ~~specified~~specified at the Payment Office of the Administrative Agent. Each such Notice of Continuation/Conversion shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period applicable thereto. If, upon the ex piration of any Interest Period in respect of any Borrowing, Borrower shall have failed to deliver the Notice of Continuation/Conversion, Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as (upon expiration of the current Interest Period) Eurodollar Advances unless the Administrative Agent and each of the Lenders shall have otherwise consented in writing. No conversion of any Borrowing of Eurodollar Advances shall be permitted except on the last day of the Interest Period in respect thereof. (ii) Whenever Borrower desires to continue all or a portion of an outstanding Borrowing of Competitive Bid Loans under its Revolving Loan Commitments, for a new Interest Period, it may request that the Lenders provide quotes for Competitive Bid Rates in the same manner prescribed in Section 3.01(a)(ii) for funding. Whenever Borrower desires to convert all or a portion of an outstanding Borrowing of Competitive Bid Loans under its Revolving Loan Commitments into a Borrowing of Syndicate Loans, it shall comply with the provisions prescribed in Section 3.01(b)(i) for conversion of Syndicate Loans. If, upon the expiration of any Interest Period in respect of any Competitive Bid Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Continuation/~~Conversion (~~Conversion, or ~~a Notice of Continuation/Conversion was incomplete)~~Lenders fail to provide such quotes, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing of a Syndicate Loan consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be ~~continued as or~~ converted to into (upon expiration of the current Interest Period) Eurodollar Advances. No conversion of any Borrowing into Eurodollar Advances ~~unless~~ shall be permitted except on the ~~Agent and each~~ last day of the ~~Lenders shall have otherwise consented~~ Interest Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Administrative Agent and the Lenders may act without liability upon the basis of telephonic notice ~~believed~~ be lieved by the Administrative Agent or ~~any~~ the Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the Administrative Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (fd) The Administrative Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Administrative Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 3.01 with ~~different Interest Periods outstanding under~~ respect to the Revolving Loan Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving Credit Agreement (Hughes Supply Inc)

Funding Notices. (ai) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing~~ of Syndicate Loans under ~~the~~ its Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)(i)), it shall give the Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing~~”),~~ ") at its Payment Office such Notice of Borrowing to be given prior to ~~11:00 A.M. (New York, New York time)~~ (x) on I 1:00 A.M. (local time for the Administrative Agent) one (1) Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, ~~and~~ (y) 2 11:00 A.M. (local time for the Administrative Agent) three (3) Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances and (z) prior to 1:00 P.M. (local time for the Administrative Agent) on the requested date of such Borrowing in the case of Competitive Bid Advances. Notices received after ~~11:00~~ 1 1:00 A.M. ~~(New York, New York time)~~ for Base Rate Advances and Eurodollar Advances and 1:00 P.M. for Competitive Bid Advances shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (bii) Whenever ~~the~~ Borrower desires to make a ~~Swing Line Borrowing~~Borrowing of Competitive Bid Loans under its Revolving Loan Commitments (other than one resulting from a conversion or continuation pursuant to Section 3.01(b)(ii)), it shall give the ~~Swing Line Bank notice~~Administrative Agent notice that the Lenders are requested to provide Competitive Bid Rates for Interest Periods identified by Borrower, such Interest Periods not ~~later than 11:00 A.M. (New York~~to exceed 180 days. Notices must comply with notice requirements of each respective Lender, ~~New York~~ which shall be communicated by Lenders to Borrower from time to time~~) on~~ . Each Lender in its discretion may, but shall not be obligated to, submit a quote to the ~~date~~ Borrower in connection with such request. The Borrower shall then be entitled, in its sole discretion, to elect to incur all or any part of the ~~proposed Swing Line Advance~~Competitive Bid Loan offered by one or more of the Lenders that have elected to provide quotes for any of the Interest Periods and at the rate(s) quoted by such Lender(s). ~~Each~~ The Competitive Bid Loans incurred by the Borrower in connection with such ~~notice of~~ a ~~proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”)~~ request for quotes shall ~~be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested~~ not exceed (i) ~~date on which such Swing Line Advances~~ with respect to ~~be made~~ all Lenders then providing quotes, the then unutilized Revolving Loan Commitments of all Lenders as a group, and (ii) with respect to each Lender providing a quote, the amount of bid by such ~~Swing Line Advance~~Lender in connection with such Lender's quote. The ~~Swing Line Bank~~Borrower shall notice the Administrative Agent and such Lender or Lenders of its election in accordance with the procedures established with such Lender or Lenders, ~~upon fulfillment~~ having no obligation to report the terms thereof; Provided, however, that if any Borrowing of Eurodollar Advances must be made as Base Rate Advances as a result of a determination made by the ~~applicable conditions set forth~~ Administrative Agent pursuant to Section ~~4.2~~3.09, ~~will make the amount thereof available,~~ such Notice of Borrowing may be revoked by Borrower no later than ~~4:00 P.M.~~ one (~~New York, New York time~~1) ~~on such~~ Business ~~Day,~~ Day prior to the ~~Borrower in same day funds by crediting the account~~ date of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, funding. (i) ~~any set-off, counterclaim, recoupment, defense~~ Whenever Borrower desires to convert all or ~~other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance~~ a portion of ~~Default or~~ an ~~Event~~ outstanding Borrowing of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Syndicate Loans under its Revolving Loan ~~made by such Lender on such Business Day for purposes~~ Commitments, Which Borrowing consists of ~~the Agreement, and the outstanding principal amount~~ Base Rate Advances into one or more Borrowings consisting of ~~the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires~~ Eurodollar Advances or to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Administrative Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given ~~to the Agent~~ prior to ~~11:00~~ I 1:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) on the date ~~specified~~specified at the Payment Office of the Administrative Agent. Each such Notice of Continuation/Conversion shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Continuation/~~Conversion (or a Notice of Continuation/Conversion was incomplete)~~Conversion, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as (upon expiration of the current Interest Period) Eurodollar Advances unless the Administrative Agent and each of the Lenders shall have otherwise consented in writing. No conversion of any Borrowing of Eurodollar Advances shall be permitted except on the last day of the interest Period in respect thereof (ii) Whenever Borrower desires to continue all or a portion of an outstanding Borrowing of Competitive Bid Loans under its Revolving Loan Commitments, for a new Interest Period, it may request that the Lenders provide quotes for Competitive Bid Rates in the same manner prescribed in Section 3.01 (a)(ii) for funding. Whenever Borrower desires to convert all or a portion of an outstanding Borrowing of Competitive Bid Loans under its Revolving Loan Commitments into a Borrowing of Syndicate Loans, it shall comply with the provisions prescribed in Section 3.01(b)(i) for conversion of Syndicate Loans. If, upon the expiration of any Interest Period in respect of any Competitive Bid Borrowing, Borrower shall have failed to deliver the Notice of Continuation/Conversion, or Lenders fail to provide such quotes, Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing of a Syndicate Loan consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be ~~continued as or~~ converted to into (upon expiration of the current Interest Period) Eurodollar Advances. No conversion of any Borrowing into Eurodollar Advances ~~unless~~ shall be permitted except on the ~~Agent and each~~ last day of the ~~Lenders shall have otherwise consented~~ Interest Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Administrative Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Administrative Agent or ~~any~~ the Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the Administrative Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (fd) The Administrative Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Administrative Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 3.01 with ~~different Interest Periods outstanding under~~ respect to the Revolving Loan Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving Credit Agreement (Hughes Supply Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ with respect to the Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)), it shall give the Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) at its Payment Office (x) ~~on the~~ one Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 two Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a ~~Swing Line Borrowing~~portion of an outstanding Borrowing under the Commitments, ~~it shall give the Swing Line Bank notice~~which Borrowing consists of Base Rate Advances or Eurodollar Advances, ~~not later than 11:00 A.M. (New York, New York time) on the date~~ into one or more Borrowings consisting of ~~the proposed Swing Line Advance. Each such notice~~ Advances of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Administrative Agent (x) at least 2 one Business ~~Days’~~ Day's prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into Base Rate Advances and (y) at least two Business Days' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) on the date ~~specified~~specified at the Payment Office of the Administrative Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and (ivin the case of Eurodollar Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any ~~Borrowing~~Borrowing of Eurodollar Advances, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Administrative Agent and each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ Eurodollar Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Administrative Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Administrative Agent or ~~any~~ the Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the Administrative Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (fd) The Administrative Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Administrative Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 3.01 with ~~different Interest Periods outstanding under~~ respect to the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving Credit Agreement (Oneita Industries Inc)

Funding Notices. (ai) Whenever the Borrower desires to make a Base Rate Borrowing or a Eurodollar Rate Borrowing ~~under the Commitments~~ (other than one resulting from a continuation or conversion pursuant to Section ~~3.5(c) or (d~~3.6(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. ------------------- (~~New York~~Atlanta, ~~New York~~ Georgia time) (x) ~~on the~~ one Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) shall be deemed received on the next Business Day. Each Notice of Borrowing shall be irrevocable, shall be substantially in the form of Exhibit BD attached to this --------- Agreement, and shall specify (A) the aggregate principal amount of the Borrowing, (B) the date of Borrowing (which shall be a Business Day), ~~and~~ (C) whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances and, in the case of Eurodollar Advances, the Interest Period to be applicable thereto, and (D) whether the Borrowing is to be advanced under the Revolving Loan Commitment, the Seasonal Loan Commitment, or the 364-Day Loan Commitment (or a combination thereof). (bii) Whenever the Borrower desires to make a ~~Swing Line~~ Bid Rate Borrowing, it shall give the ~~Swing~~ Agent and each Lender notice that the Lenders are requested to provide informational quotes on Bid Rates (a "Bid Rate -------- Request"), such Bid Rate Request must be given prior to 10:00 A.M. (Atlanta, ------- Georgia time) on the requested date of such Borrowing. No Bid Rate Request shall be given within 5 Business Days of the giving of any other Bid Rate Request. Notices received after 10:00 A.M. (Atlanta, Georgia time) shall be deemed received on the next Business Day. Each Bid Rate Request shall be substantially in the form of Exhibit E attached to this Agreement, and shall --------- specify (A) the aggregate principal amount requested, (B) the date of the Borrowing (which shall be a Business Day), (C) the relevant Interest Periods (which shall not exceed 10 in a single Bid Rate Request), and (D) whether the Borrowing is to be advanced under the Revolving Credit Commitment, the Seasonal Line ~~Bank notice~~of Credit Commitment or the 364-Day Line of Credit Commitment (or a combination thereof). Each Lender in its discretion may, but shall not be obligated to, submit quotes to the Borrower in connection with such request; provided however, that notwithstanding anything to the contrary contained in ---------------- this Agreement no Lender may submit a quote to make a Loan in excess of its applicable unutilized Commitment. No later than 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) on the date of the ~~proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line~~ requested Borrowing~~”) shall be by telephone~~, ~~confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on~~ any Lender which ~~such Swing Line Advances~~ desires to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, submit quotes to the Borrower in ~~same day funds by crediting the account of~~ connection with a Bid Rate Request must provide the Borrower ~~set forth~~ with a written bid in substantially the ~~Notice~~ form of ~~Swing Line Borrowing pursuant~~ Exhibit F attached to --------- this Agreement which ~~the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender~~ shall specify (~~other than the Swing Line Bank~~x) ~~shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to~~ the amount of ~~such Swing Line Advance times such Lender’s Pro Rata Share~~ principal offered, (y) the ~~“Swing Line Participation”~~rate of interest (expressed on a per annum basis) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (~~i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii~~z) the ~~occurrence or continuance of Default or an Event of Default or the termination of the Commitments;~~ Interest Period (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoinga "Bid Rate Quote"). The Borrower ~~hereby consents~~ shall then be entitled, in its sole discretion, -------------- to ~~each such sale and assignment~~elect to incur all or any part of the Bid Rate Loans offered by one or more of the Lenders in their Bid Rate Quotes. ~~Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not~~ No later than 1:00 P.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) on the date of a requested Borrowing, the Borrower shall provide the Agent and each Lender which submitted a Bid Rate Quote with a notice indicating which Bid Rate Quotes, if any, it desires to accept in substantially the form of Exhibit G attached to this Agreement (a "Bid Rate Acceptance"). If --------- ------------------- the Borrower does not submit a Bid Rate Acceptance by the deadline of 1:00 P.M. (Atlanta, Georgia time), it shall be deemed to have rejected all of the Bid Rate Quotes. The Bid Rate Loans incurred by the Borrower in connection with such ~~Business Day~~a request for quotes shall not exceed, or with respect to each Lender then providing Bid Rate Quotes, (i) the then unutilized Commitment of such Lender with respect to the requested Loan, and (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made bid by such Lender on in connection with such ~~Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day~~Lender's Bid Rate Quote. (cb) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest ~~Period~~Period or to convert a Borrowing consisting of Bid Rate Advances to Eurodollar Advances, it shall give the Agent at least 2 three Business Days’ ' prior written notice of each such Borrowing to be continued or converted as Eurodollar Advances. Such notice (a “"Notice of Continuation/Conversion”") shall be given to the Agent --------------------------------- prior to 11:00 A.M. (~~New York~~Atlanta, ~~New York~~ Georgia time) on the date specified. Each such Notice of Continuation/Conversion shall be irrevocable, shall be in the form of Exhibit CH attached to this Agreement, and shall specify (i) the aggregate --------- principal amount of the ~~Revolving Loans~~ Advances to be continued or converted, (ii) the date of such continuation or conversion, (iii) the specific ~~Revolving Loans~~ Advances to be continued or converted, and (iv) the Interest Period applicable thereto. If, upon the ~~expiration~~ ex piration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as the Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this ~~Section 3.5(c),~~ subsection (b) then the ~~Revolving Loans~~ Advances identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (dc) The Borrower may at any time convert a Base Rate Borrowing ~~under the Notes~~ to a Eurodollar Borrowing; provided, however, that ~~(i)~~ the Borrower shall give the Agent -------- ------- a Notice of Continuation/Conversion 2 three Business Days prior to such a ~~conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such~~ conversion~~, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing~~. In each ~~case,~~ case such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific ~~Revolving Loans~~ Advances to be converted. (ed) Without in any way limiting the Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or ~~any~~ the Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (fe) The Agent shall promptly give each Lender notice by ~~telephone~~ tele phone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5~~3.6. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Gold Kist Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ with respect to the Syndicate Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c~~4.1(c) or ~~(d))~~a Multicurrency Loan, it shall give the Administrative Agent at its Payment Office prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to (i) 11:00 ~~A.M.~~ a.m. (~~New York, New York time~~local time for the Administrative Agent) ~~(x) on~~ the same Business Day of the requested date of such Borrowing in the case of Revolving Loans comprised of Swing Line Advances, (ii) 11:00 a.m. (local time for the Administrative Agent) one (1) Business Day prior to the requested date of such Borrowing in the case of Base Rate Advances, and (yiii) 2 11:00 a.m. (local time for the Administrative Agent) three (3) Business Days prior to the requested date of such Borrowing in the case of ~~Eurodollar~~ LIBOR Advances. Notices received after ~~11:00 A.M. (New York, New York time)~~ the above times shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), ~~and (C)~~ whether the Borrowing is to consist of Base Rate Advances, LIBOR Advances, or Swing Line Advances ~~or Eurodollar Advances and,~~ and (in the case of ~~Eurodollar~~ LIBOR Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to make a ~~Swing Line Borrowing~~Borrowing consisting of one or more Multicurrency Loans, it shall give the ~~Swing Line Bank notice~~Administrative Agent at its Payment Office prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a "Notice of Multicurrency Loan"), ~~not later than~~ such Notice of Multicurrency Loan to be given prior to 11:00 ~~A.M.~~ a.m. (~~New York~~local time for the Administrative Agent) four (4) Foreign Currency Business Days prior to the requested date of such Borrowing. Notices received after such time shall be deemed received on the next Foreign Currency Business Day. Each Notice of Multicurrency Loan shall be irrevocable and shall specify that such Borrowing will be a Multicurrency Loan, ~~New York time) on~~ the date of ~~the proposed Swing Line Advance. Each such notice of a proposed Swing Line~~ Borrowing (~~a “Notice of Swing Line Borrowing”)~~ which shall be ~~by telephone~~a Business Day), ~~confirmed immediately~~ the foreign currency in ~~writing~~which the Borrowing is to be made (which must be an Available Foreign Currency), ~~or telex or telecopier, specifying therein~~ the ~~requested (i) date on which such Swing Line Advances~~ U.S. Dollar Equivalent amount of the Borrowing to be made and ~~(ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of~~ the initial Interest Period to be applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Daythereto. (c) ~~At the end~~ Whenever Borrower desires to convert all or a portion of an ~~Interest Period~~outstanding Borrowing under the Syndicate Revolving Loans (other than a Multicurrency Loan), ~~if the Borrower desires~~ which Borrowing consists of Base Rate Advances , LIBOR Advances, or a Swing Line Loan into one or more Borrowings consisting of Advances of another Type, or to continue outstanding a Borrowing consisting of ~~Eurodollar~~ LIBOR Advances for a new Interest Period, it shall give the Administrative Agent at least 2 three (3) Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as ~~Eurodollar~~ LIBOR Advances. Whenever Borrower desires to continue a Multicurrency Loan, it shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) thereof at least four (4) Foreign Currency Business Days prior to the end of the applicable Interest Period. Such notice (a “"Notice of Conversion/ Continuation~~/Conversion”~~") shall be given (a) with respect to ~~the Agent~~ LIBOR Advances, prior to 11:00 ~~A.M.~~ a.m. (~~New York~~local time for the Administrative Agent) and (b) with respect to Multicurrency Loans, ~~New York time)~~ prior to 11:00 a.m. (local time for the Administrative Agent), on the date ~~specified~~specified at the Payment Office of the Administrative Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ or the amount of the Multicurrency Loan to be continued, as the case may be, the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ in respect of LIBOR Advances, whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued ~~or converted,~~ as LIBOR Advances and (ivin the case of LIBOR Advances and Multicurrency Loans) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of ~~Continuation~~Conversion/~~Conversion (or a Notice of Continuation/Conversion was incomplete)~~Continu- ation, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued ~~as or converted to~~ (upon expiration of the current Interest Period) ~~Eurodollar~~ as LIBOR Advances. No conversion of any Borrowing of LIBOR Advances ~~unless~~ shall be permitted except on the ~~Agent and each~~ last day of the ~~Lenders shall have otherwise consented~~ Interest Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing Any Multicurrency Loan which remains unpaid at the ~~time~~ expiration of ~~such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify~~ the Interest Period ~~selected by~~ applicable thereto shall be automatically continued for an Interest Period of the ~~Borrower for such Borrowing and the specific Revolving Loans to be converted~~same length. (e) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Administrative Agent and the Lenders may act without liability upon the basis of telephonic notice reasonably believed by the Administrative Agent or ~~any~~ the Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation~~. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice~~. (f) The Administrative Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Administrative Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 4.1 with ~~different Interest Periods outstanding under~~ respect to the Revolving Credit Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving Credit Agreement (Planet Hollywood International Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ with respect to the Revolving Loan Commitments (other than one resulting from a ~~continuation or conversion~~ Swingline Advance pursuant to Section ~~3.5(c)~~ 2.5 or (da conversion or continuation pursuant to Section 4.1(b)), it shall give the Agent prior ~~written~~ notice (~~or telephonic notice~~ if by telephone, promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Agent) at its Payment Office (xi) ~~on the~~ one Business Day of prior to the requested date of such Borrowing in the case of Revolving Loans comprised of Base Rate Advances, and (yii) 2 three Business Days prior to the requested date of such Borrowing in the case of ~~Eurodollar~~ LIBOR Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), ~~and (C)~~ whether the Borrowing is to consist of Base Rate Advances or ~~Eurodollar~~ LIBOR Advances ~~and,~~ and (in the case of ~~Eurodollar~~ LIBOR Advances, ) the Interest Period to be applicable thereto. Swingline Advances shall be made by SunTrust from time to time upon such terms and conditions as may be mutually agreed upon by and between the Borrower and SunTrust from time to time for each such Swingline Loan. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a ~~Swing Line Borrowing~~portion of an outstanding Borrowing under the Syndicate Revolving Loans, ~~it shall give the Swing Line Bank notice~~which Borrowing consists of Base Rate Advances or LIBOR Advances, ~~not later than 11:00 A.M. (New York, New York time) on the date~~ into one or more Borrowings consisting of ~~the proposed Swing Line Advance. Each such notice~~ Advances of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of ~~Eurodollar~~ LIBOR Advances for a new Interest Period, it shall give the Agent at least 2 three Business Days’ ' prior ~~written~~ notice (if by telephone, promptly confirmed in writing) of each such Borrowing to be converted into or continued as ~~Eurodollar~~ LIBOR Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York, New York time~~local time for the Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued as Base Rate Advances or ~~converted,~~ LIBOR Advances and (ivin the case of LIBOR Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Revolving Credit Agreement (Discount Auto Parts Inc)

Funding Notices. (a) ~~Whenever the~~ Subject to paragraph (e) below, whenever Borrower desires to make a ~~Base Rate~~ Borrowing with respect to the Revolving Loan Commitments or ~~a Eurodollar Borrowing under~~ the ~~Commitments (other than one resulting from a continuation or conversion pursuant to Section 3.5(c) or (d))~~Term Loan Commitments, it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Agent) at its Lending Office (xi) on ~~the Business Day of~~ the requested date of such Borrowing in the case of Base Rate Advances, and (yii) 2 three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. All Notice of Borrowing shall be executed by the Borrower outside the State of Florida and shall be delivered to the Agent outside the State of Florida at its Atlanta Lending Office. (b) ~~Whenever the~~ Subject to paragraph (e) below, whenever Borrower desires to ~~make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date~~ convert one or more Borrowings of ~~the proposed Swing Line Advance. Each such notice~~ one Type into Borrowing of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give ~~the~~ Agent ~~at least 2 Business Days’~~ prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be ~~continued as~~ converted or continued, such Notice of Conversion/Continuation to be given prior to 11:00 a.m. (local time for the Agent) at its Lending Office (i) on the requested date of such Borrowing in the case of the continuation into a Base Rate Advance, and (ii) three Business Days prior to the requested date of such Borrowing in the case of a continuation of or conversion into Eurodollar Advances. ~~Such notice (a “Notice of Continuation/Conversion”)~~ Notices received after 11:00 a.m. shall be ~~given to the Agent prior to 11:00 A.M. (New York, New York time)~~ deemed received on the ~~date specified~~next Business Day. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Borrowing to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation (which shall be a Business Day), whether the Borrowing is being converted into or ~~conversion, (iii) the specific Revolving Loans to be~~ continued ~~or converted,~~ as Eurodollar Advances and (ivin the case of Eurodollar Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. ~~So long as~~ No conversion of any ~~Default or Event~~ Borrowing of ~~Default~~ Eurodollar Advances shall ~~have occurred and~~ be ~~continuing, no Borrowing may be continued as or converted to (upon expiration~~ permitted except on the last day of the ~~current~~ Interest ~~Period) Eurodollar Advances unless~~ Period in respect thereof. The Borrower shall execute each Notice of Conversion/Continuation outside the State of Florida and shall deliver said Notice to the Agent ~~and each~~ outside the State of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted Florida at ~~the applicable interest rate based on LIBOR for the relevant Interest Period~~its Atlanta Lending Office. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or ~~any~~ the Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the Agent’s 's and the Lender’s 's record of the terms of such telephonic notice. (fd) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 4.1 with ~~different Interest Periods outstanding under~~ respect to the Revolving Loan Commitments and Term Loans Commitments. (he) ~~Each~~ Unless the Agent directs otherwise in writing, no Notice of Borrowing under paragraph (a) above, and no Notice of ~~Swing Line Borrowing~~ Conversion/Continuation under paragraph (b) above shall be ~~irrevocable~~ applicable. If and ~~binding on~~ when the Borrower ~~and~~ desires any Borrowing under paragraph (a) above or a conversion/continuation of an existing Borrowing under paragraph (b) above, the Borrower ~~shall indemnify each Lender against any loss or expense incurred by such Lender~~ will only give telephonic notice to the Agent as ~~a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions~~ set forth in ~~Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason~~ said paragraphs. The Agent will be under no duty to verify the authority of the ~~liquidation~~ person giving any telephonic instructions to the Agent. The Agent will then furnish to the Borrower a Confirmation of Borrowing or ~~reemployment~~ a Confirmation of ~~deposits or other funds acquired by such Lender (and the Swing Line Bank in~~ Conversion/Continuation, as the case may be. Absent manifest error or gross negligence, the Confirmation of ~~Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result~~ Borrowing and Confirmation of ~~such failure, is not made on such date~~Conversion/Continuation shall be conclusive.

Appears in 1 contract

Samples: Revolving Line of Credit and Term Loan Agreement (Solar Mates Inc)

Funding Notices. (ai) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ with respect to the Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)(i)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior ------------------- to 11:00 A.M. (~~New York, New York time~~local time for the Agent) at the Payment Office of the Agent (x) on the Business Day of which is the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (bii) ~~Whenever the~~ The Borrower ~~desires~~ shall be deemed to ~~make~~ have requested a Swing ~~Line Borrowing, it shall give~~ Rate Advance with respect to the Swing Line ~~Bank notice~~Subcommitment as set forth in Section 2.02(a) above (each, ~~not later than 11:00 A.M. (New York, New York time) on the date of the proposed Swing Line Advance. Each such notice of~~ a ~~proposed Swing Line Borrowing (a “~~"Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line AdvanceLoan"). The Swing Line ~~Bank, upon fulfillment~~ Lender ------------------------- shall notify the Borrower of the Swing Rate applicable ~~conditions set forth Section 4.2, will make~~ to each Swing Rate Advance for the ~~amount thereof available, no later than 4:00 P.M. (New York, New York time) on such~~ Interest Period by the end of each Business ~~Day, to~~ Day and the ~~Borrower in same day funds by crediting the account~~ failure of the Borrower ~~set forth in the Notice of Swing Line Borrowing pursuant~~ to ~~which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender~~ contest such rate within two (~~other than the Swing Line Bank~~2) Business Days shall be ~~deemed, without further action by any Person,~~ deemed to ~~have purchased from~~ be conclusive evidence of the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, Borrower's acceptance thereof. (i) ~~any set-off, counterclaim, recoupment, defense~~ Whenever Borrower desires to convert all or ~~other right which such Lender or any other Person may have against~~ a portion of an outstanding Borrowing under the ~~Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance~~ Revolving Loan Commitments consisting of ~~Default or an Event~~ Base Rate Advances into a Borrowing consisting of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business DayEurodollar Advances, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 A.M. --------------------------------- (~~New York, New York time~~local time for the Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period to be applicable thereto. If, upon the expiration of any Interest Period in respect of any ~~Borrowing~~Borrowing consisting of Eurodollar Advances, ~~the~~ Borrower shall have failed to either deliver a the Notice of ~~Continuation~~Conversion/~~Conversion (~~Continuation or ~~a Notice of Continuation/Conversion was incomplete)~~repay such Borrowing, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ Eurodollar Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (dii) ~~The Borrower may at~~ Upon the expiration of the applicable Interest Period with respect to any ~~time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided~~Swing Line Loan, ~~however, that (i)~~ the Borrower shall ~~give~~ repay such Swing Line Loan to the ~~Agent~~ Swing Line Lender, and in the event that the other Lenders have purchased a ~~Notice of Continuation/Conversion 2 Business Days prior~~ participation in such Swing Line Loan pursuant to Section 2.02 hereof, the Swing Line Lender shall distribute such ~~a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of~~ payments pro rata amongst the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be convertedparticipating therein. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the ~~Lenders~~ Swing Line Lender may act without liability upon the basis of telephonic notice believed by the Agent or ~~any~~ the Swing Line Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the Agent~~’s and~~ 's or the Swing Line Lender’s 's record of the terms of such telephonic notice, absent manifest error. (fd) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 3.01 with ~~different Interest Periods outstanding under~~ respect to the Revolving Loan Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Krystal Company)

Funding Notices. (a) Whenever the Borrower desires to make a Base Rate Borrowing or a Eurodollar Borrowing under the Commitments (other than one resulting from a continuation or conversion pursuant to Section 3.5(c) or (d)), it Intermet shall give the Administrative Agent ~~prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (~~a ~~“Notice of Borrowing”), such~~ duly completed Notice of Borrowing ~~to be given~~ in the form of Exhibit D-1 attached hereto prior to 11:00 ~~A.M.~~ AM (~~New York~~local time for the Administrative Agent) at its Payment Office on the Closing Date. If the Notice of Borrowing does not conform substantially to the format of Exhibit D-1, ~~New York~~ it may be rejected in the Administrative Agent's sole discretion, and the Administrative Agent shall notify Intermet of such rejection by telecopy not later than 12:00 noon (Atlanta, Georgia time~~) (x~~) on the ~~Business Day of the requested~~ date of ~~such Borrowing in the case of Base Rate Advances, and (y) 2 Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances~~receipt. ~~Notices received after 11:00 A.M. (New York, New York time) shall be deemed received on the next Business Day. Each~~ The Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be ~~a Business Day~~the Closing Date), and ~~(C) whether~~ that the Borrowing is to consist entirely of Base Rate Advances. (b) Whenever Intermet desires to convert all or a portion of an outstanding Borrowing, which Borrowing consists of Base Rate Advances or Eurodollar ~~Advances and, in the case of Eurodollar~~ Advances, the Interest Period to be applicable thereto. (b) Whenever the Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on the date into one or more Borrowings consisting of ~~the proposed Swing Line Advance. Each such notice~~ Advances of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Administrative Agent a duly completed Notice of Conversion/Continuation in the form of Exhibit D-2 attached hereto, such Notice of Conversion/Continuation to be given at least 2 three Business ~~Days’~~ Days prior ~~written notice of~~ to each such Borrowing to be converted into or continued as Eurodollar Advances. Such ~~notice (a “~~Notice of ~~Continuation~~Conversion/~~Conversion”~~Continuation shall be given prior to 11:00 AM (local time for the Administrative Agent) on the date specified at the Payment Office of the Administrative Agent. Notices received after 11:00 AM (local time for the Administrative Agent) shall be ~~given~~ deemed received on the next Business Day. A Notice of Conversion/ Continuation that does not conform substantially to the format of Exhibit D-2 may be rejected in the Administrative Agent's sole discretion, and the Administrative Agent ~~prior to 11:00 A.M.~~ shall notify Intermet of such rejection by telecopy not later than 12:00 noon (~~New York~~Atlanta, ~~New York~~ Georgia time) on the date ~~specified~~of receipt. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued ~~or converted~~Eurodollar Advances and, ~~and (iv)~~ if so, the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the Borrower~~ Intermet shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the Borrower~~ Intermet shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Intermet has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Administrative Agent and each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ Eurodollar Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (ec) Without in any way limiting ~~the Borrower’s~~ Intermet's obligation to confirm in writing any telephonic notice, the Administrative Agent ~~and the Lenders~~ may act without liability upon the basis of telephonic notice believed by the Administrative Agent ~~or any Lender~~ in good faith to be from ~~the Borrower~~ Intermet prior to receipt of written confirmation. In each such case, ~~the Borrower~~ Intermet hereby waives the right to dispute the Administrative Agent~~’s and the Lender’s~~ 's record of the terms of such telephonic notice. (fd) The Administrative Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Administrative Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 3.01 with ~~different Interest Periods outstanding under~~ respect to the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Term Loan Agreement (Intermet Corp)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing with respect to the Revolving Loan Commitments or ~~a Eurodollar Borrowing under~~ the ~~Commitments~~ Line of Credit Commitment (other than one resulting from a ~~continuation or conversion~~ mandatory LIBOR Advance pursuant to Section ~~3.5(c)~~ 3.4 or (da conversion or continuation pursuant to Section 4.1(b)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Agent) at its Payment Office (xi) ~~on the~~ one Business Day of prior to the requested date of such Borrowing in the case of Revolving Loans comprised of Base Rate Advances, ~~and~~ (yii) 2 three Business Days prior to the requested date of such Borrowing in the case of ~~Eurodollar~~ LIBOR Advances, and (iii) the same Business Day of the requested date of such Borrowing in the case of Line of Credit Loans. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ whether such Borrowing will be a Revolving Loan or Line of Credit Loan, the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), ~~and (C)~~ if the Borrowing is a Revolving Loan, whether the Borrowing is to consist of Base Rate Advances or ~~Eurodollar~~ LIBOR Advances ~~and,~~ and (in the case of ~~Eurodollar~~ LIBOR Advances, ) the Interest Period to be applicable thereto. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a ~~Swing Line Borrowing~~portion of an outstanding Borrowing under the Syndicate Revolving Loans, ~~it shall give the Swing Line Bank notice~~which Borrowing consists of Base Rate Advances or LIBOR Advances, ~~not later than 11:00 A.M. (New York, New York time) on the date~~ into one or more Borrowings consisting of ~~the proposed Swing Line Advance. Each such notice~~ Advances of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of ~~Eurodollar~~ LIBOR Advances for a new Interest Period, it shall give the Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as ~~Eurodollar~~ LIBOR Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York, New York time~~local time for the Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued ~~or converted,~~ as LIBOR Advances and (iv) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, the Borrower shall have failed to deliver a Notice of Continuation/Conversion (or a Notice of Continuation/Conversion was incomplete), then the Borrower shall be deemed to have elected to convert such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be continued as or converted to (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Period. (d) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of ~~Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)~~LIBOR Advances) ~~to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.~~the

Appears in 1 contract

Samples: Revolving Credit and Line of Credit Agreement (Rotech Medical Corp)

Funding Notices. (a) (i) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing with respect to the Term Loans or ~~a Eurodollar Borrowing under~~ the Revolving Loan Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~4.01(b)(i)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing ------------------- to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Agent) at the Payment Office of the Agent (x) ~~on the~~ one Business Day of prior to the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2 three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (bii) Whenever ~~the~~ Borrower desires to ~~make~~ obtain a ~~Swing Line Borrowing~~Money Market Bid, it shall ~~give~~ notify the ~~Swing Line Bank notice, not later than 11:00 A.M. (New York, New York time) on~~ Administrative Agent in accordance with the ~~date of the proposed Swing Line Advance. Each such notice of a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately~~ procedure set forth in ~~writing, or telex or telecopier, specifying therein the requested~~ Section 2.04 hereof. (i) ~~date on which such Swing Line Advances~~ Whenever Borrower desires to ~~be made and (ii) amount~~ convert all or a portion of ~~such Swing Line Advance. The Swing Line Bank, upon fulfillment~~ an outstanding Borrowing under the Revolving Loan Commitments or constituting a portion of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account Term Loans consisting of ~~the Borrower set forth in the Notice~~ Base Rate Advances into a Borrowing consisting of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business DayEurodollar Advances, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar ~~Advances~~Ad vances. Such notice (a “"Notice of --------- Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York, New York time~~local time for the ----------------------- Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such conversion or continuation ~~or conversion, (iii) the specific Revolving Loans to be continued or converted,~~ and ~~(iv)~~ the Interest Period to be applicable thereto. If, upon the expiration of any Interest Period in respect of any ~~Borrowing~~Borrowing consisting of Eurodollar Advances, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to to, in the case of the Term Loans, a Borrowing consisting of Eurodollar Advances for an Interest Period of three months and, in the case of the Revolving Loans, a Borrowing consisting of Base Rate Advances. So long as any Executive Officer of Borrower has knowledge that any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. ~~If the Borrower has complied with the terms~~ No conversion of ~~this Section 3.5(c), then the Revolving Loans identified in the Notice~~ any Borrowing of ~~Continuation/Conversion~~ Eurodollar Advances shall be ~~continued or converted at~~ permitted except on the ~~applicable interest rate based on LIBOR for~~ last day of the ~~relevant~~ Interest ~~Period~~Period in respect thereof. (dii) ~~The Borrower may at~~ Upon the expiration of the applicable Interest Period with respect to any ~~time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided~~Money Market Loan, ~~however, that (i)~~ the Borrower shall ~~give~~ repay such Money Market Loan to the Agent ~~a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at~~ for the ~~time of such conversion, no Borrowing may be converted unless the Agent and each~~ ratable benefit of the Lenders ~~shall have otherwise consented~~ participating in ~~writing. In each case,~~ such ~~Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted~~Money Market Loan. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Agent and the Lenders may act without liability upon the basis of telephonic notice believed by the Agent or any Lender in good faith to be from the Borrower prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice. (f) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section 3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances with different Interest Periods outstanding under the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Morrison Restaurants Inc/)

Funding Notices. (ai) Whenever ~~the~~ Borrower desires to ~~make~~ obtain a ~~Base Rate Borrowing or a Eurodollar Borrowing under~~ Syndicated Loan with respect to the Commitments (other than one resulting from a conversion or continuation ~~or conversion~~ pursuant to Section ~~3.5(c) or (d~~3.01(b)(i)), it shall give the Agent prior written notice (or telephonic notice promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 ~~A.M.~~ AM (~~New York, New York time~~local time for the Agent) at its Payment Office (x) ~~on the Business Day of the requested date of such Borrowing in the case of Base Rate Advances, and (y) 2~~ three Business Days prior to the requested date of such Borrowing in the case of Eurodollar Advances and Bid Rate Advances, and (y) on the date of such Borrowing (which shall be a Business Day) in the case of a Borrowing consisting of Base Rate Advances. Notices received after 11:00 ~~A.M. (New York, New York time)~~ AM shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), and ~~(C)~~ whether the Borrowing is to consist of Base Rate Advances or Eurodollar Advances ~~and,~~ and (in the case of Eurodollar Advances, ) the Interest Period to be applicable thereto. (bii) Whenever ~~the~~ Borrower desires to ~~make~~ obtain a Swing Line ~~Borrowing~~Loan, it shall ~~give~~ notify the Swing Line ~~Bank notice~~Lender, ~~not later than 11:00 A.M. (New York, New York time) on the date of the proposed Swing Line Advance. Each such notice of~~ with a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available copy to the Agent, ~~such Lender agrees to pay to~~ in accordance with the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid procedure set forth in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business DaySection 2.08 hereof. (ciii) At Whenever Borrower desires to obtain a Bid Rate Loan, it shall notify the ~~end~~ Agent in accordance with the procedure set forth in Section 2.09 hereof. (i) Whenever Borrower desires to convert all or a portion of an ~~Interest Period~~outstanding Borrowing under the Commitments, ~~if the Borrower desires~~ which Borrowing consists of Base Rate Advances or Eurodollar Advances, into one or more Borrowings consisting of Advances of another Type, or to continue outstanding a Borrowing consisting of Eurodollar Advances for a new Interest Period, it shall give the Agent at least 2 three Business Days’ ' prior written notice (or telephonic notice promptly confirmed in writing) of each such Borrowing to be converted into or continued as Eurodollar Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 ~~A.M.~~ AM (~~New York, New York time~~local time for the Agent) on the date ~~specified~~specified at the Payment Office of the Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued ~~or converted~~Eurodollar Advances and, ~~and (iv)~~ if so, the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to deliver a the Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued as ~~or converted to~~ (upon expiration of the current Interest Period) Eurodollar Advances unless the Agent and each of the Lenders shall have otherwise consented in writing. If No conversion of any Borrowing of Eurodollar Advances shall be permitted except on the last day of the Interest Period in respect thereof. (ii) Upon the expiration of the applicable Interest Period with respect to Swing Line Loans, Borrower ~~has complied~~ shall repay such Loan in full in accordance with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodhereof. (diii) ~~The Borrower may at any time convert a Base~~ Upon the expiration of the applicable Interest Period with respect to Bid Rate ~~Borrowing under the Notes to a Eurodollar Borrowing; provided~~Loans, ~~however, that (i) the~~ Borrower shall ~~give~~ repay such Loan in full in accordance with the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be convertedterms hereof. (ec) Without in any way limiting ~~the~~ Borrower’s 's obligation to confirm in writing any telephonic notice, the Agent and the ~~Lenders~~ Swing Line Lender may act without liability upon the basis of telephonic notice believed by the Agent or ~~any~~ the Swing Line Lender in good faith to be from ~~the~~ Borrower prior to receipt of written confirmation. In each such case, ~~the~~ Borrower hereby waives the right to dispute the Agent~~’s and~~ 's or the Swing Line Lender’s 's record of the terms of such telephonic notice. (fd) The Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telecopy or facsimile transmission of the matters covered by the notices given to the Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 3.01 with ~~different Interest Periods outstanding under~~ respect to the Commitments. (h) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such date.

Appears in 1 contract

Samples: Credit Agreement (Haverty Furniture Companies Inc)

Funding Notices. (a) Whenever ~~the~~ Borrower desires to make a ~~Base Rate~~ Borrowing ~~or a Eurodollar Borrowing under~~ with respect to the Revolving Loan Commitments (other than one resulting from a ~~continuation or conversion~~ Swingline Advance pursuant to Section ~~3.5(c)~~ 2.4 or (da conversion or continuation pursuant to Section 4.1(b)), it shall give the Administrative Agent prior ~~written~~ notice (~~or telephonic notice~~ if by telephone, promptly confirmed in writing) of such Borrowing (a “"Notice of Borrowing”"), such Notice of Borrowing to be given prior to 11:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) at its Payment Office (xi) ~~on the~~ one Business Day of prior to the requested date of such Borrowing in the case of Revolving Loans comprised of Base Rate Advances, and (yii) 2 three Business Days prior to the requested date of such Borrowing in the case of ~~Eurodollar~~ LIBOR Advances. Notices received after 11:00 A.M. ~~(New York, New York time)~~ shall be deemed received on the next Business Day. Each Notice of Borrowing shall be ~~irrevocable, shall be substantially in the form of Exhibit B,~~ irrevocable and shall specify ~~(A)~~ the aggregate principal amount of the Borrowing, ~~(B)~~ the date of Borrowing (which shall be a Business Day), ~~and (C)~~ whether the Borrowing is to consist of Base Rate Advances or ~~Eurodollar~~ LIBOR Advances ~~and,~~ and (in the case of ~~Eurodollar~~ LIBOR Advances, ) the Interest Period to be applicable thereto. Swingline Advances shall be made by SunTrust from time to time upon such terms and conditions as may be mutually agreed upon by and between the Borrower and SunTrust from time to time for each such Swingline Loan. (b) Whenever ~~the~~ Borrower desires to ~~make~~ convert all or a ~~Swing Line Borrowing~~portion of an outstanding Borrowing under the Syndicate Revolving Loans, ~~it shall give the Swing Line Bank notice~~which Borrowing consists of Base Rate Advances or LIBOR Advances, ~~not later than 11:00 A.M. (New York, New York time) on the date~~ into one or more Borrowings consisting of ~~the proposed Swing Line Advance. Each such notice~~ Advances of ~~a proposed Swing Line Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing~~another Type, or telex or telecopier, specifying therein the requested (i) date on which such Swing Line Advances to be made and (ii) amount of such Swing Line Advance. The Swing Line Bank, upon fulfillment of the applicable conditions set forth Section 4.2, will make the amount thereof available, no later than 4:00 P.M. (New York, New York time) on such Business Day, to the Borrower in same day funds by crediting the account of the Borrower set forth in the Notice of Swing Line Borrowing pursuant to which the Swing Line Advance is being made. At any time the Swing Line Bank makes a Swing Line Advance, each Lender (other than the Swing Line Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Advance in an amount equal to the amount of such Swing Line Advance times such Lender’s Pro Rata Share (the “Swing Line Participation”) and shall be obligated to fund such participation at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such Swing Line Participation shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Bank or any other Person for any reason whatsoever; (ii) the occurrence or continuance of Default or an Event of Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund any outstanding Swing Line Participation on (i) the Business Day of which demand therefor is made by the Swing Line Bank; provided that such demand is made not later than 1:00 P.M. (New York, New York time) on such Business Day, or (ii) the first Business Day next succeeding such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Lender of a Swing Line Participation, the Swing Line Bank represents and warrants to such other Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Advance or Swing Line Participation, or the Loan Documents. If and to the extent that any Lender shall not have so made the amount of such Swing Line Participation available to the Agent, such Lender agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of the request by the Swing Line Bank until the date such amount is paid to the Agent, at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Revolving Loan made by such Lender on such Business Day for purposes of the Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day. (c) At the end of an Interest Period, if the Borrower desires to continue outstanding a Borrowing consisting of ~~Eurodollar~~ LIBOR Advances for a new Interest Period, it shall give the Administrative Agent at least 2 three Business Days’ ' prior ~~written~~ notice (if by telephone, promptly confirmed in writing) of each such Borrowing to be converted into or continued as ~~Eurodollar~~ LIBOR Advances. Such notice (a “"Notice of Conversion/Continuation~~/Conversion”~~") shall be given ~~to the Agent~~ prior to 11:00 A.M. (~~New York, New York time~~local time for the Administrative Agent) on the date ~~specified~~specified at the Payment Office of the Administrative Agent. Each such Notice of ~~Continuation~~Conversion/~~Conversion~~ Continuation shall be ~~irrevocable, shall be in the form of Exhibit C,~~ irrevocable and shall specify ~~(i)~~ the aggregate principal amount of the ~~Revolving Loans~~ Advances to be ~~continued~~ converted or ~~converted~~continued, ~~(ii)~~ the date of such ~~continuation~~ conversion or ~~conversion~~continuation, ~~(iii)~~ whether the ~~specific Revolving Loans to be~~ Advances are being converted into or continued as Base Rate Advances or ~~converted,~~ LIBOR Advances and (ivin the case of LIBOR Advances) the Interest Period applicable thereto. If, upon the expiration of any Interest Period in respect of any Borrowing, ~~the~~ Borrower shall have failed to ~~deliver~~ give a Notice of Conversion/Continuation~~/Conversion (or a Notice of Continuation/Conversion was incomplete)~~, ~~then the~~ Borrower shall be deemed to have elected to convert or continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long as any Default or Event of Default shall have occurred and be continuing, no Borrowing may be converted into or continued ~~as or converted to~~ (upon expiration of the current Interest Period) ~~Eurodollar~~ as LIBOR Advances. No conversion or continuation of any Borrowing of LIBOR Advances ~~unless~~ shall be permitted except on the ~~Agent and each~~ last day of the ~~Lenders shall have otherwise consented~~ Interest Period in writing. If the Borrower has complied with the terms of this Section 3.5(c), then the Revolving Loans identified in the Notice of Continuation/Conversion shall be continued or converted at the applicable interest rate based on LIBOR for the relevant Interest Periodrespect thereof. (dc) The Borrower may at any time convert a Base Rate Borrowing under the Notes to a Eurodollar Borrowing; provided, however, that (i) the Borrower shall give the Agent a Notice of Continuation/Conversion 2 Business Days prior to such a conversion and (ii) so long as any Default or Event of Default shall have occurred and be continuing at the time of such conversion, no Borrowing may be converted unless the Agent and each of the Lenders shall have otherwise consented in writing. In each case, such Notice of Continuation/Conversion shall specify the Interest Period selected by the Borrower for such Borrowing and the specific Revolving Loans to be converted. (e) Without in any way limiting the Borrower’s obligation to confirm in writing any telephonic notice, the Administrative Agent and the Lenders may act without liability upon the basis of ~~telephonic~~ any such notice given pursuant to this Section 4.1 reasonably believed by the Administrative Agent or any Lender in good faith to be from ~~the~~ Borrower ~~prior to receipt of written confirmation. In each such case, the Borrower hereby waives the right to dispute the Agent’s and the Lender’s record of the terms of such telephonic notice~~in making Loans hereunder or in continuing or converting Loans or Advances outstanding hereunder. (fd) The Administrative Agent shall promptly give each Lender notice by telephone (confirmed in writing) or by telex, telecopy or facsimile transmission of the matters covered by the notices given to the Administrative Agent pursuant to this Section ~~3.5. (g) There shall not be at any one time more than 8 Eurodollar Advances~~ 4.1 with ~~different Interest Periods outstanding under~~ respect to the Revolving Credit Commitments. (he) ~~Each Notice of Borrowing and Notice of Swing Line Borrowing~~ Notwithstanding anything to the contrary contained elsewhere in this Agreement, any notice given under this Section 4.1 shall be ~~irrevocable~~ given by the Borrower in accordance with reasonable written policies of the Administrative Agent in effect from time to time and provided to the Borrower by the Administrative Agent, which policies shall be binding on the Borrower and the Borrower shall indemnify each Lender against any loss or expense incurred by such Lender as a result of any failure to fulfill on or before, as applicable, the date specified for such Revolving Loan the applicable conditions set forth in Article 4, including, without limitation, any loss (excluding loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender (and the Swing Line Bank in the case of Swing Line Advances by the Swing Line Bank pursuant to Section 2.1(b)) to fund such Revolving Loan when such Revolving Loan, as a result of such failure, is not made on such dateBorrower.

Appears in 1 contract

Samples: Revolving Credit Agreement (Discount Auto Parts Inc)

Common use of Funding Notices Clause in Contracts