Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address. (b) Anything in subsection (a) above to the contrary notwithstanding, (i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000; (ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time; (iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance; (iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and (v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance. (c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III. (d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement. (e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 3 contracts
Samples: Credit Agreement (Computer Sciences Corp), Credit Agreement (Computer Sciences Corp), Credit Agreement (Computer Sciences Corp)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City timei) on the third Business Day prior to the date of a the proposed A Borrowing, in the case of an A Borrowing consisting comprised of Eurodollar Rate Advances, (ii) on the second Business Day prior to the date of the proposed A Borrowing, in the case of an A Borrowing comprised of Adjusted CD Rate Advances, and (iii) on the date of the proposed A Borrowing, in the case of an A Borrowing comprised of Base Rate Advances, in each case by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 2.02
(a) hereto, specifying therein the requested (iA) date of such A Borrowing, (iiB) Type of A Advances comprising such A Borrowing, (iiiC) aggregate amount of such A Borrowing and (D) in the case of an A Borrowing comprised of Adjusted CD Rate Advances or Eurodollar Rate Advances, initial Interest Period for each such A Advance. Each Lender shall, before (x) 12:00 noon on the date of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar or Adjusted CD Rate Advances, in each case and (y) 1:00 p.m. on the date of such A Borrowing, in the case of an A Borrowing comprised of Base Rate Advances, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will promptly make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Adjusted CD Rate Advances or Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(dc) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion A Advance as part of such A Borrowing, the Agent may assume that such Lender has made such portion A Advance available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion A Advance available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount amount, together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(ed) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 3 contracts
Samples: Credit Agreement (Ies Utilities Inc), Credit Agreement (Ies Utilities Inc), Credit Agreement (Ies Utilities Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x1) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances, 11:00 A.M. (New York City time) at least three Business Days prior to the date of the proposed Borrowing, and (2) in the case of a proposed Borrowing comprised of Base Rate Advances, 10:00 A.M. (New York City time) on the date of a the proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate AdvancesBorrowing, by the Borrower requesting the proposed such A Borrowing to the Agent, which shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopiertelecopy, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, executed by the Borrower requesting such A Borrowing and specifying therein the requested (i) date of such A BorrowingBorrowing (which shall be a Business Day), (ii) initial Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender Bank shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its New York address referred to in Section 9.028.02, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed such A Borrowing at the Agent's aforesaid address. Notwithstanding the other provisions hereof, each Bank that is to be paid by any Borrower on July 23, 1997, any principal amount outstanding under the 1996 Credit Agreement as contemplated by Section 8.14 shall apply the proceeds of any Advance to be made by it to such Borrower on such date to pay such amount and only an amount equal to the difference (if any) between the amount of such Advance and the principal amount being so paid shall be made available by such Bank to the Agent as provided herein, or remitted by such Borrower to the Agent as provided in Section 2.13, as the case may be.
(b) Anything in subsection (a) above herein to the contrary notwithstanding,:
(i) a at no time shall there be outstanding to any one Borrower more than six A Borrowings comprised of Eurodollar Rate Advances;
(ii) no Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than (x) if such Borrowing is made by WPL or WilTel, $5,000,000;
, and (iiy) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at if such Borrowing is made by any timeother Borrower, $20,000,000;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, Majority Banks shall notify the Agent that either (A) the introduction of or Eurodollar Rate for any change in or in the interpretation of Interest Period for any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances will not adequately reflect the cost to such Banks of making or to fund or maintain funding their respective Eurodollar Rate Advances hereunderfor such Interest Period, or (B) that U.S. dollar deposits for the Commitment of such Lender relevant amounts and Interest Period for their respective Advances are not available to make Eurodollar Rate Advances them in the London interbank market, or it is otherwise impossible to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding have Eurodollar Rate Advances, if anythe Agent shall forthwith so notify the Borrowers and the Banks, shall be whereupon (I) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advances; Advance, and (II) the obligations of the Banks to the extent that such affected Eurodollar Rate make, or to Convert Advances become Base Rate Advancesinto, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(v), each A Advance comprising such any requested A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining is unable to determine the Adjusted Eurodollar Rate for any Eurodollar Rate Advances, the obligation of the Banks to make, or to Convert Advances into, Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(v), each A Advance comprising such any requested A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shalla Borrower has requested a proposed A Borrowing consisting of Eurodollar Rate Advances and as a result of circumstances referred to in Section 2.02(b)(iii) or (iv) such A Borrowing would not consist of Eurodollar Rate Advances, such Borrower may, by notice given not later than 3:00 P.M. (New York City time) at least one Business Day before prior to the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such proposed A Borrowing will not adequately reflect the cost to such Majority Lenders of makingwould otherwise be made, funding or maintaining their respective Eurodollar Rate Advances for cancel such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising in which case such A Borrowing shall be cancelled and no Advances shall be made as a Base Rate Advanceresult of such requested A Borrowing, but such Borrower shall indemnify the Banks in connection with such cancellation as contemplated by Section 2.02(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrowers, except as set forth in Section 2.02(b)(v). In the case of any A Borrowing requested by a Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the such Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.,
(d) Unless the Agent shall have received notice from a Lender Bank prior to the date of any A Borrowing to a Borrower that such Lender Bank will not make available to the Agent such LenderBank's ratable portion of such A Borrowing, the Agent may assume that such Lender Bank has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the such Borrower requesting the proposed such A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion available to the Agent, such Lender Bank and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such LenderBank, the Federal Funds Rate. If such Lender Bank shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such LenderBank's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
Appears in 3 contracts
Samples: Credit Agreement (Williams Communications Group Inc), Credit Agreement (Williams Communications Group Inc), Credit Agreement (Williams Companies Inc)
Making the A Advances. (a) Each During the Revolving Period, each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City Dallas time)
(1) on in the date case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) 12:00 noon (New York City time) on the third Advances, at least three Business Day Days prior to the date of the proposed Borrowing, and (2) in the case of a proposed A Borrowing consisting comprised of Eurodollar Base Rate Advances, on the Business Day of the proposed Borrowing, by the Borrower requesting the proposed such A Borrowing to the Agent, which shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be in writing (including by telecopier, telex or cable, confirmed immediately in writingtelecopy), in substantially the form of Exhibit A-1 B-1 hereto, executed by the Borrower and specifying therein the requested (i) date of such A BorrowingBorrowing (which shall be a Business Day), (ii) Type ii)Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in iv)Interest Period for each such A Advance. In the case of an a proposed A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for Agent shall promptly notify each such A Advance. A Borrower may, subject to Bank of the conditions herein provided, borrow more than one A Borrowing on any Business Dayapplicable interest rate under Section 2.06(b). Each Lender Bank shall, before 1:00 P.M. (New York City Dallas time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such a proposed A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.0210.02, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(bi) Anything in subsection at no time shall there be outstanding more than five A Borrowings consisting of Eurodollar Rate Advances and one Borrowing consisting of Base Rate Advances (a) above to the contrary notwithstanding,other than Borrowings consisting of Base Rate Advances as a result of Section 2.02(b)(iii), (iv), or (v));
(iii) a the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing be made if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time20,000,000;
(iii) if any Lender Bank shall, at least one Business Day before the date of any requested A BorrowingBorrowing to be made, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender Bank or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent such Bank shall notify the Borrowers Agent that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(vi), each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference the Majority Banks furnish timely information shall, on or before the date of any requested A Borrowing to be made, notify the Agent for determining that the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested such A Borrowing will not adequately reflect the cost to such Banks of making their respective Eurodollar Rate Advances for such A Borrowing, the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers Borrower and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(vi), each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and;
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify less than two Reference Banks furnish timely information to the Agent that for determining the Adjusted Eurodollar Rate for Eurodollar Rate Advances Advances, comprising such any requested A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowingbe made, the right of a the Borrower to select Eurodollar Rate Advances Advances, as the case may be, for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(vi), each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.;
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Fina Inc), 364 Day Credit Agreement (Fina Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day (on the first Business Day in the case of a Base Rate Advance) prior to the date of a the proposed A Borrowing consisting of Eurodollar Rate AdvancesBorrowing, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such Borrower's notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, substantially in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date Drawdown Date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar LIBOR Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate The total amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made available by each Lender shall never exceed the Commitment of such Lender, as adjusted by such Lender as part of Lender's B Reduction, and shall be proportionate always to such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions Lender's Percentage Interest set forth in Article IIIthe signature pages hereof or, if applicable, in the Register.
(dc) Unless the Agent shall have received written notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(d) The Borrower shall repay the principal amount of each A Advance made by each Lender in accordance with the Series A Note payable to such Lender, provided that the aggregate principal amount of any A Advance outstanding on the Termination Date shall be paid on the Termination Date.
(e) The failure Borrower may on any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Section 2.05, and so long as no Default or Event of Default has occurred and is continuing, Convert all A Advances of one Type comprising the same A Borrowing into Advances of another Type; provided, however, that any Conversion of any Lender to make the A Advance to LIBOR Rate Advances into Advances of another Type shall be made by it as part on, and only on, the last day of any A Borrowing shall not relieve any other Lender an Interest Period for such LIBOR Rate Advances. Each such notice of its obligationa Conversion shall, if anywithin the restrictions specified above, hereunder to make its A Advance on specify (i) the date of such A BorrowingConversion, but no Lender shall be responsible for the failure of any other Lender to make (ii) the A Advance Advances to be made by Converted, and (iii) if such other Lender on Conversion is into LIBOR Rate Advances, the date duration of any the Interest Period for each such A BorrowingAdvance.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Carnival Corp), Revolving Credit Agreement (Carnival Corp)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date day of a such proposed A Borrowing, in the case of an A Borrowing consisting comprised of Base Rate Advances and (y) 12:00 noon (New York City time) Advances, or on the third Business Day prior to the date of a the proposed A Borrowing, in the case of an A Borrowing consisting comprised of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing Company to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopiertelex, telex telecopier or cable. Each such notice of an A a Borrowing (a "Notice of A Borrowing") shall be by telecopiertelex, telex telecopier or cable, confirmed immediately promptly in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to In the conditions herein provided, borrow more than one case of a proposed A Borrowing on any Business Daycomprised of Eurodollar Rate Advances, the Administrative Agent shall promptly notify each Lender of the applicable interest rate under Section 2.07(b). Each Lender shall, before 1:00 12:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing Company at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case Company and, in respect of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing Company shall indemnify each Lender against any loss, cost loss or expense incurred by such Lender as a result of any failure by the Company to fulfill on or before the date specified for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(db) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing Company on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such Borrower the Company severally agree to repay to the Administrative Agent (without duplication), forthwith on demand demand, such corresponding amount amount, together with interest thereon, thereon for each day from the date such amount is made available to such Borrower the Company until the date such amount is repaid to the Administrative Agent, at (ix) in the case of such Borrowerthe Company, at the interest rate applicable at the time to A Advances comprising such A Borrowing and (iiy) in the case of such Lender, at the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(ec) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
(d) If, for any reason, an A Borrowing is not made on the date specified in any Notice of A Borrowing, the Administrative Agent hereby agrees to repay to each Lender the amount, if any, which such Lender has made available to the Administrative Agent as such Lender's ratable portion of such A Borrowing, together with interest thereon for each day from the date such amount is made available to the Administrative Agent until the date such amount is repaid to such Lender, at the Federal Funds Rate.
Appears in 2 contracts
Samples: 364 Day Revolving Credit Agreement (Progress Energy Inc), Revolving Credit Agreement (Progress Energy Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given by the Company to the Agent not later than (x) 10:00 A.M. 11:00 a.m. (New York City time) on the date day of a the proposed A Borrowing consisting in the case of a Base Rate Advances Borrowing and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to in the Agent, which case of a Eurodollar Rate Borrowing. The Agent thereupon shall give to each Lender Bank prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 heretoB-l xxxeto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender Bank shall, before 1:00 P.M. p.m. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III5, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing Company at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingCompany. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing Company shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender Bank on account of any failure to fulfill on or before the date specified for such A Borrowing in such Notice of A Borrowing the applicable conditions set forth in Article 5, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender Bank to fund the A Advance to be made by such Lender Bank as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 2 contracts
Samples: Bank Credit Agreement (Boeing Co), Bank Credit Agreement (Boeing Co)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing (in the case of an A Borrowing consisting of Eurodollar Rate Advances) or given not later than 11:00 A.M. (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing consisting of Base Rate Advances), by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not only select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the in an aggregate amount of such A Borrowing $10,000,000 or such Conversion or continuance is less than an integral multiple of $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change 1,000,000 in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advanceexcess thereof.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill, on or before the date specified in such Notice of A Borrowing, the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason Borrowing. The Borrower shall pay amounts owing to any Lender pursuant to this Section 2.02(c) within 30 days after receipt from such Lender of a certificate setting forth in reasonable detail the calculation of the termination of hedging or other similar arrangementsamount such Lender is entitled to claim under this Section 2.02(c) (which certificate shall be conclusive and binding for all purposes, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIabsent manifest error).
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this AgreementAgreement (and such A Advance shall be deemed to have been made by such Lender on the date on which such amount is so repaid to the Administrative Agent).
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Becton Dickinson & Co), Five Year Credit Agreement (Becton Dickinson & Co)
Making the A Advances. (a) Each During the Revolving Period, each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City Dallas time)
(1) on in the date case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) 12:00 noon (New York City time) on the third Advances, at least three Business Day Days prior to the date of the proposed Borrowing, and (2) in the case of a proposed A Borrowing consisting comprised of Eurodollar Base Rate Advances, on the Business Day of the proposed Borrowing, by the Borrower requesting the proposed such A Borrowing to the Agent, which shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be in writing (including by telecopier, telex or cable, confirmed immediately in writingtelecopy), in substantially the form of Exhibit A-1 B-1 hereto, executed by the Borrower and specifying therein the requested (i) date of such A BorrowingBorrowing (which shall be a Business Day), (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in Interest Period for each such A Advance. In the case of an a proposed A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for Agent shall promptly notify each such A Advance. A Borrower may, subject to Bank of the conditions herein provided, borrow more than one A Borrowing on any Business Dayapplicable interest rate under Section 2.06(b). Each Lender Bank shall, before 1:00 P.M. (New York City Dallas time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such a proposed A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.0210.02, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,:
(i) at no time shall there be outstanding more than five A Borrowings consisting of Eurodollar Rate Advances and one Borrowing consisting of Base Rate Advances (other than Borrowings consisting of Base Rate Advances as a result of Section 2.02(b)(iii), (iv), or (v));
(ii) the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing be made if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time20,000,000;
(iii) if any Lender Bank shall, at least one Business Day before the date of any requested A BorrowingBorrowing to be made, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender Bank or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent such Bank shall notify the Borrowers Agent that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(vi), each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference the Majority Banks furnish timely information shall, on or before the date of any requested A Borrowing to be made, notify the Agent for determining that the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested such A Borrowing will not adequately reflect the cost to such Banks of making their respective Eurodollar Rate Advances for such A Borrowing, the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers Borrower and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(vi), each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and;
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify less than two Reference Banks furnish timely information to the Agent that for determining the Adjusted Eurodollar Rate for Eurodollar Rate Advances Advances, comprising such any requested A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowingbe made, the right of a the Borrower to select Eurodollar Rate Advances Advances, as the case may be, for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(vi), each A Advance comprising such A Borrowing shall be made as a Base Rate Advance;
(vi) if the Borrower has requested a proposed A Borrowing consisting of Eurodollar Rate Advances and as a result of circumstances referred to in Section 2.02(b)(iii), (iv) or (v) such A Borrowing would not consist of Eurodollar Rate Advances, the Borrower may, by notice given not later than 2:00 P.M. (Dallas time) at least one Business Day prior to the date such proposed A Borrowing would otherwise be made, cancel such A Borrowing, in which case such A Borrowing shall be cancelled and no Advances shall be made as a result of such requested A Borrowing, but the Borrower shall indemnify the Banks in connection with such cancellation as contemplated by Section 2.02(c); and
(vii) if the Borrower shall fail to select the duration or continuation of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of "Interest Period" in Section 1.01 and this paragraph (b), the Agent will promptly so notify the Borrower and the Banks and such A Advances will be made available to the Borrower on the date of such A Borrowing as Base Rate Advances.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower, except as set forth in Section 2.02(b)(vi). In the case of any A Borrowing requested by the Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
, including, without limitation, any loss (d) Unless including loss of reasonably anticipated profits), cost or expense incurred by reason of the Agent shall have received notice from a Lender prior liquidation or reemployment of deposits or other funds acquired by such Bank to fund the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date. A certificate in reasonable detail as to the basis for purposes and the amount of this Agreementsuch loss, cost or expense submitted to the Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense. If an A Borrowing requested by the Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances is not made as an A Borrowing comprised of Eurodollar Rate Advances as a result of Section 2.02(b), the Borrower shall indemnify each Bank against any loss (excluding loss of profits), cost or expense incurred by such Bank by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank (prior to the time such Bank is actually aware that such A Borrowing will not be so made) to fund the A Advance to be made by such Bank as part of such A Borrowing. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to the Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense.
(d) With respect to any new A Borrowing to be made on the last day of an Interest Period, the Borrower and each Bank agree that any amounts payable by the Borrower to such Bank in connection with maturing A Advances on the date of such Borrowing shall be netted against the amount of the new Borrowing to be funded by such Bank so as to eliminate where possible the need for actual payment and readvancement of funds by the parties. In the event of any A Borrowing
(e) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Fina Inc), 364 Day Credit Agreement (Fina Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, --------------------- notice given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (yi) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing, if such proposed A Borrowing consisting consists of Eurodollar Rate Advances and (ii) 10:00 A.M. (New York City time) on the day of such proposed A Borrowing, if such proposed A Borrowing consists of Base Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each A Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex telecopier or cabletelephone (and --------------------- if by telephone, confirmed immediately in writing), in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, Borrowing and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. Each A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. 12:00 noon (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.0210.02, in same day funds, such A Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article IIIV, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before 1,000,000 multiplied by the date number of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate AdvanceLenders.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each A Lender against any loss, cost or expense incurred by such A Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIV, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such A Lender to fund the A Advance to be made by such A Lender as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a an A Lender (i) in the case of any A Borrowing consisting of (A) Eurodollar Rate Advances or (B) Base Rate Advances for which the Notice of A Borrowing is given other than on the date thereof, prior to the date of such A Borrowing or (ii) in the case of any A Borrowing consisting of Base Rate Advances for which the Notice of A Borrowing is given on the date thereof, prior to the time at which such A Lender is required to fund such A Borrowing, which notice shall in either case state that such A Lender will not make available to the Agent such A Lender's ratable portion of such A Borrowing, the Agent may assume that such A Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such A Lender shall not have so made such ratable portion available to the Agent, such A Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, Agent at (ix) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (iiy) in the case of such A Lender, the Federal Funds Rate. If such A Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such A Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any A Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other A Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no A Lender shall be responsible for the failure of any other A Lender to make the A Advance to be made by such other A Lender on the date of any A Borrowing.
(f) The Borrower shall, if requested by any A Lender, execute and deliver a promissory note, in substantially the form of Exhibit E-1 hereto, payable to the order of such A Lender in an original principal amount equal to such A Lender's A Commitment, duly executed by the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Gap Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) by the Company (on behalf of the date applicable Borrower):
(w) in the case of a proposed A Borrowing consisting comprised of Base Rate Advances and (y) 12:00 noon (New York City time) Advances, to the Agent on the third date of such proposed Borrowing;
(x) in the case of a proposed A Borrowing comprised of Adjusted CD Rate Advances, to the Agent two Business Day Days prior to the date of such proposed Borrowing;
(y) in the case of a proposed A Borrowing consisting comprised of Eurodollar Rate AdvancesEurocurrency Advances denominated in Dollars, by to the Borrower requesting Agent two Business Days prior to the date of such proposed Borrowing; and
(z) in the case of a proposed A Borrowing comprised of Eurocurrency Advances denominated in an Alternative Currency, to the Euro-Agent three Business Days prior to the date of such proposed Borrowing. The Agent or Euro-Agent, which as applicable, shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of NOTICE OF A BorrowingBORROWING") shall be by telecopiertelecopy, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 EXHIBIT B-1 hereto, specifying therein the requested (i) Borrower, (ii) date of such A Borrowing, (iiiii) Type of A Advances comprising such A Borrowing, (iiiiv) in the case of a proposed A Borrowing comprised of Eurocurrency Advances, currency of such A Advances, (v) in the case of a proposed A Borrowing comprised of Eurocurrency Advances or Adjusted CD Rate Advances, initial Interest Period for each such Advance and (vi) aggregate amount of such A Borrowing. The Company shall certify, in each Notice of A Borrowing, the Credit Ratings, if any, then in effect. In the case of an A Borrowing comprised of Eurocurrency Advances denominated in an Alternative Currency, the Company shall request, within one- half hour prior to the issuance of the applicable Notice of A Borrowing, the advice of the Euro-Agent as to the applicable exchange rate then in effect with respect to such Alternative Currency, and the Company shall specify in such Notice of A Borrowing the exchange rate so advised to it by the Euro-Agent. In the case of a proposed A Borrowing comprised of Eurocurrency Advances, the Agent or the Euro-Agent, as applicable, shall promptly notify each Bank and the Company of the applicable interest rate under SECTION 2.07(b).
(ivb) Each Bank shall make available for the account of its Applicable Lending Office:
(i) in the case of an A Borrowing comprised of Eurodollar Base Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, Agent before 1:00 P.M. 12:00 noon (New York City time) in time)(or, if the case applicable Notice of a A Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case shall have been given on the date of such A Borrowing, make available before 4:00 P.M. (New York City time)) on the date of such A Borrowing, at such account maintained at the Payment Office for Dollars as shall have been notified by the account of its Applicable Lending Office Agent to the Agent at its address referred to in Section 9.02, Banks prior thereto and in same day funds, such LenderBank's ratable portion of such A Borrowing;
(ii) in the case of an A Borrowing comprised of Eurocurrency Advances denominated in Dollars or Adjusted CD Rate Advances, to the Agent before 12:00 noon (New York City time) on the date of such A Borrowing, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Banks prior thereto and in same day funds, such Bank's ratable portion of such A Borrowing in Dollars; and
(iii) in the case of an A Borrowing comprised of Eurocurrency Advances denominated in an Alternative Currency, to the Euro-Agent before 12:00 noon (London time) on the date of such A Borrowing, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Euro-Agent to the Banks prior thereto and in same day funds, such Bank's ratable portion of such A Borrowing in such Alternative Currency. After the Agent's or the Euro-Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article ARTICLE III, the Agent or the Euro- Agent, as applicable, will make such funds available to the applicable Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advanceapplicable Payment Office.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowingon whose behalf it shall have been submitted. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Eurocurrency Advances, the applicable Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense reasonably incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article ARTICLE III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent or Euro-Agent, as applicable, shall have received notice from a Lender Bank prior to the date of any A Borrowing that such Lender Bank will not make available to the Agent or Euro-Agent such LenderBank's ratable portion of such A Borrowing, the Agent or Euro-Agent, as applicable, may assume that such Lender Bank has made such portion available to the Agent it on the date of such A Borrowing in accordance with subsection SUBSECTION (ab) of this Section SECTION 2.02 and the Agent it may, in reliance upon such assumption, make (but shall not be required to make) available to the applicable Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion available to the Agent or the Euro-Agent, as applicable, such Lender Bank and such Borrower severally agree to repay to the Agent or Euro-Agent, as applicable, forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent or the Euro-Agent, as applicable, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such LenderBank, the Federal Funds Rate. If such Lender Bank shall repay to the Agent or Euro- Agent, as applicable, such corresponding amount, such amount so repaid shall constitute such LenderBank's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Ecolab Inc)
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex mail or cabledelivery. Each such notice of an A Borrowing (a "“Notice of A Borrowing"”) shall be by telecopier, telex mail or cabledelivery, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A The Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ’s ratable portion of such A Borrowing. After the Agent's ’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's ’s aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers Borrower that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's ’s then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's ’s Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers Borrower that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ’s ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree agrees to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's ’s A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x1) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances, 11:00 A.M. (New York City time) at least three Business Days prior to the date of the proposed Borrowing, and (2) in the case of a proposed Borrowing comprised of Base Rate Advances, 10:00 A.M. (New York City time) on the date of a the proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate AdvancesBorrowing, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopiertelecopy, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, executed by the Borrower and specifying therein the requested (i) date of such A BorrowingBorrowing (which shall be a Business Day), (ii) initial Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender Bank shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its New York address referred to in Section 9.028.2, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above herein to the contrary notwithstanding,:
(i) a at no time shall there be outstanding to the Borrower more than six A Borrowings comprised of Eurodollar Rate Advances;
(ii) the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time20,000,000;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, Majority Banks shall notify the Agent that either (A) the introduction of or Eurodollar Rate for any change in or in the interpretation of Interest Period for any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances will not adequately reflect the cost to such Banks of making or to fund or maintain funding their respective Eurodollar Rate Advances hereunderfor such Interest Period, or (B) that U.S. dollar deposits for the Commitment of such Lender relevant amounts and Interest Period for their respective Advances are not available to make Eurodollar Rate Advances them in the London interbank market, or it is otherwise impossible to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding have Eurodollar Rate Advances, if anythe Agent shall forthwith so notify the Borrower and the Banks, shall be whereupon (I) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advances; Advance, and (II) the obligations of the Banks to the extent that such affected Eurodollar Rate make, or to Convert Advances become Base Rate Advancesinto, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers Borrower and the Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.2(b)(v), each A Advance comprising such any requested A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining is unable to determine the Adjusted Eurodollar Rate for any Eurodollar Rate Advances, the obligation of the Banks to make, or to Convert Advances into, Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.2(b)(v), each A Advance comprising such any requested A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shallBorrower has requested a proposed A Borrowing consisting of Eurodollar Rate Advances and as a result of circumstances referred to in Section 2.2(b)(iii) or (iv) such A Borrowing would not consist of Eurodollar Rate Advances, the Borrower may, by notice given not later than 3:00 P.M. (New York City time) at least one Business Day before prior to the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such proposed A Borrowing will not adequately reflect the cost to such Majority Lenders of makingwould otherwise be made, funding or maintaining their respective Eurodollar Rate Advances for cancel such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising in which case such A Borrowing shall be canceled and no Advances shall be made as a Base Rate Advanceresult of such requested A Borrowing, but the Borrower shall indemnify the Banks in connection with such cancellation as contemplated by Section 2.2(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower, except as set forth in Section 2.2(b)(v). In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
, including, without limitation, any loss (d) Unless including loss of reasonably anticipated profits), cost or expense incurred by reason of the Agent shall have received notice from a Lender prior liquidation or reemployment of deposits or other funds acquired by such Bank to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make fund the A Advance to be made by such other Lender Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date. A certificate in reasonable detail as to the date basis for and the amount of any A Borrowing.such loss, cost or expense submitted to the Borrower and the Agent by such Bank shall be prima facie evidence
Appears in 1 contract
Samples: Credit Agreement (Williams Holdings of Delaware Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City timei) on the third Business Day prior to the date of a the proposed A Borrowing, in the case of an A Borrowing consisting comprised of Eurodollar Rate Advances, and (ii) on the date of the proposed A Borrowing, in the case of an A Borrowing comprised of Base Rate Advances, in each case by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing A
(a "Notice of A Borrowing"a) shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (iA) date of such A Borrowing, (iiB) Type of A Advances comprising such A Borrowing, (iiiC) aggregate amount of such A Borrowing, Borrowing and (ivD) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City timex) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case 12:00 noon on the date of such A Borrowing, in the case of an A Borrowing comprised of Eurodollar Rate Advances, and (y) 1:00 p.m. on the date of such A Borrowing, in the case of an A Borrowing comprised of Base Rate Advances, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will promptly make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(dc) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion A Advance as part of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion A Advance available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion A Advance available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount amount, together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(ed) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex mail or cabledelivery. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex mail or cabledelivery, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A The Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers Borrower that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers Borrower that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(viv) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x1) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances, 11:00 A.M. (New York City time) at least three Business Days prior to the date of the proposed Borrowing, and (2) in the case of a proposed Borrowing comprised of Base Rate Advances, 10:00 A.M. (New York City time) on the date of a the proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate AdvancesBorrowing, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopiertelecopy, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, executed by the Borrower and specifying therein the requested (i) date of such A BorrowingBorrowing (which shall be a Business Day), (ii) initial Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender Bank shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its New York address referred to in Section 9.028.2, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above herein to the contrary notwithstanding,:
(i) a at no time shall there be outstanding to the Borrower more than six A Borrowings comprised of Eurodollar Rate Advances;
(ii) the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time20,000,000;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, Majority Banks shall notify the Agent that either (A) the introduction of or Eurodollar Rate for any change in or in the interpretation of Interest Period for any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances will not adequately reflect the cost to such Banks of making or to fund or maintain funding their respective Eurodollar Rate Advances hereunderfor such Interest Period, or (B) that U.S. dollar deposits for the Commitment of such Lender relevant amounts and Interest Period for their respective Advances are not available to make Eurodollar Rate Advances them in the London interbank market, or it is otherwise impossible to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding have Eurodollar Rate Advances, if anythe Agent shall forthwith so notify the Borrower and the Banks, shall be whereupon (I) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advances; Advance, and (II) the obligations of the Banks to the extent that such affected Eurodollar Rate make, or to Convert Advances become Base Rate Advancesinto, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers Borrower and the Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.2(b)(v), each A Advance comprising such any requested A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining is unable to determine the Adjusted Eurodollar Rate for any Eurodollar Rate Advances, the obligation of the Banks to make, or to Convert Advances into, Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.2(b)(v), each A Advance comprising such any requested A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shallBorrower has requested a proposed A Borrowing consisting of Eurodollar Rate Advances and as a result of circumstances referred to in Section 2.2(b)(iii) or (iv) such A Borrowing would not consist of Eurodollar Rate Advances, the Borrower may, by notice given not later than 3:00 P.M. (New York City time) at least one Business Day before prior to the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such proposed A Borrowing will not adequately reflect the cost to such Majority Lenders of makingwould otherwise be made, funding or maintaining their respective Eurodollar Rate Advances for cancel such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising in which case such A Borrowing shall be canceled and no Advances shall be made as a Base Rate Advanceresult of such requested A Borrowing, but the Borrower shall indemnify the Banks in connection with such cancellation as contemplated by Section 2.2(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower, except as set forth in Section 2.2(b)(v). In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
, including, without limitation, any loss (d) Unless including loss of reasonably anticipated profits), cost or expense incurred by reason of the Agent shall have received notice from a Lender prior liquidation or reemployment of deposits or other funds acquired by such Bank to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make fund the A Advance to be made by such other Lender Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date. A certificate in reasonable detail as to the date basis for and the amount of any such loss, cost or expense submitted to the Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense. If an A Borrowing.Borrowing which the related Notice of A
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv1) in the case of an A a proposed Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on at least three Business Days prior to the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.the
(b) Anything in subsection (a) above herein to the contrary notwithstanding,:
(i) a at no time shall there be outstanding to the Borrower more than six A Borrowings comprised of Eurodollar Rate Advances;
(ii) the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time20,000,000;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, Majority Banks shall notify the Agent that either (A) the introduction of or Eurodollar Rate for any change in or in the interpretation of Interest Period for any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances will not adequately reflect the cost to such Banks of making or to fund or maintain funding their respective Eurodollar Rate Advances hereunderfor such Interest Period, or (B) that U.S. dollar deposits for the Commitment of such Lender relevant amounts and Interest Period for their respective Advances are not available to make Eurodollar Rate Advances them in the London interbank market, or it is otherwise impossible to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding have Eurodollar Rate Advances, if anythe Agent shall forthwith so notify the Borrower and the Banks, shall be whereupon (I) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advances; Advance, and (II) the obligations of the Banks to the extent that such affected Eurodollar Rate make, or to Convert Advances become Base Rate Advancesinto, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers Borrower and the Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(v), each A Advance comprising such any requested A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining is unable to determine the Adjusted Eurodollar Rate for any Eurodollar Rate Advances, the obligation of the Banks to make, or to Convert Advances into, Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders Banks that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and, except as
(v) if the Majority Lenders shallBorrower has requested a proposed A Borrowing consisting of Eurodollar Rate Advances and as a result of circumstances referred to in Section 2.02(b)(iii) or (iv) such A Borrowing would not consist of Eurodollar Rate Advances, the Borrower may, by notice given not later than 3:00 P.M. (New York City time) at least one Business Day before prior to the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such proposed A Borrowing will not adequately reflect the cost to such Majority Lenders of makingwould otherwise be made, funding or maintaining their respective Eurodollar Rate Advances for cancel such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising in which case such A Borrowing shall be cancelled and no Advances shall be made as a Base Rate Advanceresult of such requested A Borrowing, but the Borrower shall indemnify the Banks in connection with such cancellation as contemplated by Section 2.02(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower, except as set forth in Section 2.02(b)(v). In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of reasonably anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to the Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense. If an A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances is not made as an A Borrowing comprised of Eurodollar Rate Advances as a result of Section 2.02(b), the Borrower shall indemnify each Bank against any loss (excluding loss of profits), cost or expense incurred by such Bank by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank prior to the time such Bank is actually aware that such A Borrowing will not be so made to fund the A Advance to be made by such Bank as part of such A Borrowing. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to the Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense.
(d) Unless the Agent shall have received notice from a Lender Bank prior to the date of any A Borrowing that such Lender Bank will not make available to the Agent such LenderBank's ratable portion of such A Borrowing, the Agent may assume that such Lender Bank has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion available to the Agent, such Lender Bank and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.the
(e) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Williams Holdings of Delaware Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) (i) on the date same Business Day as the proposed A Borrowing in the case of a proposed an A Borrowing consisting of Base Rate Advances and or (y) 12:00 noon (New York City timeii) on the third Business Day prior to the date of a the proposed A Borrowing in the case of an A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopierfacsimile transmission, or by telex or cable, cable (confirmed immediately in writing), in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid addressaddress not later than 2:00 P.M. (New York City time) on such date.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance20,000,000.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender (i) by 12:00 Noon on the date of any A Borrowing in the case of any A Borrowing consisting of Base Rate Advances or (ii) by 12:00 Noon on the Business Day prior to the date of any A Borrowing consisting of Eurodollar Rate Advances that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Supervalu Inc)
Making the A Advances. (a) a Each A Borrowing shall be made on noticenotice by the Borrower to the Administrative Agent (a "NOTICE OF A BORROWING") received by the Administrative Agent, given (i) in the case of a proposed A Borrowing comprised of Base Rate Advances, not later than (x) 10:00 A.M. (New York City time) on the date Business Day of such proposed A Borrowing, and (ii) in the case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) Advances, not later than 12:00 noon (New York City time) on the third Business Day prior to the date of a such proposed A Borrowing consisting Borrowing. Each Notice of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agentshall be by telecopy, which shall give to each Lender prompt notice thereof telefax or other teletransmission or by telephone (and if by telephone, confirmed promptly by telecopier, telex telefax or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writingother teletransmission), in substantially the form of Exhibit A-1 B hereto, specifying therein the requested (iw) date of such A Borrowing, (iix) Type of A Advances comprising such A BorrowingBorrowing and, additionally, whether such A Borrowing consists of Revolving A Advances or Term A Advances, (iiiy) aggregate amount of such A Borrowing, and (ivz) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. p.m. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent in care of The Chase Manhattan Bank, Agency Services, One Xxxxx Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Xxtention: Munixxx Xxxxxxx, Xxference: Burlington Resources Inc., or at its address referred such other location designated by notice from the Administrative Agent to in the Lenders pursuant to Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.such
Appears in 1 contract
Samples: Short Term Revolving Credit Agreement (Burlington Resources Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing (in the case of an A Borrowing to consist of Eurocurrency Rate Advances), or by 11:00 A.M. (New York City time) on the day of the proposed A Borrowing (in the case of an A Borrowing to consist of Base Rate Advances), by the Company (on its own behalf and on behalf of the other Borrowers) to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex telecopier or cableby telex. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopiertelecopier or by telex, telex or cable, --------------------- confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) the date of such A Borrowing, (ii) the Type of A Advances comprising such A Borrowing, (iii) the aggregate amount of such A BorrowingBorrowing and the Currency thereof (except that Base Rate Advances must be denominated in Dollars), and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Eurocurrency Rate Advances, the initial Interest Period for each such A Advance. Advance and (v) the name of the Borrower of such A Borrower may, subject to Advance (which shall be the conditions herein provided, borrow more than one A Borrowing on any Business DayCompany or a Designated Borrower). Each Lender shallshall on the date of such A Borrowing, before 11:00 A.M. (New York City time), in the case of an A Borrowing to consist of Eurocurrency Rate Advances, and before 1:00 P.M. (New York City time) ), in the case of a an A Borrowing consisting to consist of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in the relevant Currency and in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing Company at the Administrative Agent's aforesaid address.address (or, in the case of an A Borrowing by a Designated Borrower, the Administrative Agent will make such funds available to the relevant Borrower in such manner as the Administrative Agent and the Company may agree). 364-DAY CREDIT AGREEMENT
(b) Anything in subsection (a) above to the contrary notwithstanding,
notwithstanding (i1) a no Borrower may not select Eurodollar Eurocurrency Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount obligation of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating the Lenders to Eurodollar make Eurocurrency Rate Advances outstanding at any time;
shall then be suspended pursuant to Section 2.08 or 2.12 (iiiexcept as otherwise provided in Section 2.12(b)(ii)) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of and (2) Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advancedenominated solely in Dollars.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingCompany and each Designated Borrower. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised consist of Eurodollar Eurocurrency Rate Advances, the Company (and, if a Designated Borrower requesting is the proposed borrower of the related A Borrowing Advances, such Designated Borrower) shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any revocation of such Notice of A Borrowing by the Company (or such Designated Borrower) or any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such revocation or failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing (in the case of an A Borrowing to consist of Eurocurrency Rate Advances) and not later than 12:00 Noon (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing to consist of Base Rate Advances) that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower requesting the proposed A Borrowing on such date a corresponding amount; provided that nothing in this subsection (d) shall be construed to relieve any Lender from any obligation hereunder to make available to the Administrative Agent its ratable portion of such A Borrowing in accordance with subsection (a) of this Section 2.02. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the relevant Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the relevant Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such Borrower, the interest rate applicable at the such time to the A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: 364 Day Multicurrency Credit Agreement (Solutia Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) (i) on the date same Business Day as the proposed A Borrowing in the case of a proposed an A Borrowing consisting of Base Rate Advances and or (y) 12:00 noon (New York City timeii) on the third Business Day prior to the date of a the proposed A Borrowing in the case of an A Borrowing consisting of Eurodollar Rate LIBOR Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, or by telex or cable, cable (confirmed immediately in writing), in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate LIBOR Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid addressaddress not later than 2:00 P.M. (New York city time) on such date.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate LIBOR Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance20,000,000.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate LIBOR Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender (i) by 12:00 Noon on the date of any A Borrowing in the case of any A Borrowing consisting of Base Rate Advances or (ii) by 12:00 Noon (New York City time) on the Business Day prior to the date of any A Borrowing consisting of LIBOR Advances that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Supervalu Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City timei) on the third Business Day prior to the date of a the proposed A Borrowing, in the case of an A Borrowing consisting comprised of Eurodollar Rate Advances, and (ii) on the date of the proposed A Borrowing, in the case of an A Borrowing comprised of Base Rate Advances, in each case by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of NOTICE OF A BorrowingBORROWING") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 2.02
(a) hereto, specifying therein the requested (iA) date of such A Borrowing, (iiB) Type of A Advances comprising such A Borrowing, (iiiC) aggregate amount of such A Borrowing, Borrowing and (ivD) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City timex) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case 12:00 noon on the date of such A Borrowing, in the case of an A Borrowing comprised of Eurodollar Rate Advances, and (y) 1:00 p.m. on the date of such A Borrowing, in the case of an A Borrowing comprised of Base Rate Advances, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will promptly make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(dc) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion A Advance as part of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion A Advance available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion A Advance available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount amount, together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(ed) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing consisting (in the case of an A Borrowing to be comprised of Eurodollar Rate Advances), or by 11:00 A.M. (New York City time) on the day of the proposed A Borrowing (in the case of an A Borrowing to be comprised of Base Rate Advances), by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex telecopier or cableby telex. Each such notice of an A Borrowing (a "Notice of NOTICE OF A BorrowingBORROWING") shall be by telecopier, telex telecopier or cableby telex, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. Each Lender shall on the date of such A Borrower mayBorrowing, subject to before 11:00 A.M. (New York City time), in the conditions herein provided, borrow more than one case of an A Borrowing on any Business Day. Each Lender shallto be comprised of Eurodollar Rate Advances, and before 1:00 P.M. (New York City time) ), in the case of a an A Borrowing consisting to be comprised of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount obligation of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder Lenders to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith then be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; pursuant to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been Section 2.08 or 2.12 (except as otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advancein Section 2.12(b)(ii)).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any revocation of such Notice of A Borrowing by the Borrower or any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such revocation or failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing (in the case of an A Borrowing to be comprised of Eurodollar Rate Advances) and not later than 12:00 Noon (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing to be comprised of Base Rate Advances) that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount; PROVIDED, HOWEVER, that nothing in this subsection (d) shall be construed to relieve any Lender from any obligation hereunder to make available to the Administrative Agent its ratable portion of such A Borrowing in accordance with subsection (a) of this Section 2.02. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the such time to the A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Monsanto Co)
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice given by the Borrower or a Borrowing Subsidiary, given as the case may be, and received by the Administrative Agent, which shall give prompt notice thereof to each Lender by telecopier, not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing consisting in the case of Eurodollar Rate Advances, by or the Borrower requesting same Business Day in the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cablecase of Base Rate Advances. Each such notice of an A Borrowing (a "“Notice of A Borrowing"”) shall be given by telecopier, telex or cable, confirmed immediately in writingby hand or by mail, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower mayUpon fulfillment of the applicable conditions set forth in Article III, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each each Lender shall, before 1:00 P.M. 12:00 noon (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.02the Administrative Agent’s Account, in same day immediately available funds, such Lender's ’s ratable portion of such A Borrowing. After the Administrative Agent's ’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will promptly make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address’s address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding,:
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Administrative Agent shall immediately notify the Borrowers that such Borrower and each other Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower and any Borrowing Subsidiary to select Eurodollar Rate Advances for the portion of such A Borrowing advanced by the Lender which has provided the notice described above or the portion of any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances advanced by such Lender shall forthwith be suspended until the Agent such Lender shall notify the Borrowers Administrative Agent and the Administrative Agent will notify the Borrower that the circumstances causing such suspension no longer exist, and each A such Advance comprising such A Borrowing shall be a Base Rate Advance;
(ivii) if fewer than two no Reference Banks furnish Bank furnishes timely information to the Administrative Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the Administrative Agent shall immediately notify each Lender and the Borrower and the right of a the Borrower and any Borrowing Subsidiary to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Administrative Agent shall notify the Borrowers Lenders and the Lenders Borrower that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(viii) if the Majority Required Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Administrative Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Required Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the Administrative Agent shall immediately notify the Borrower and each other Lender and the right of a the Borrower and any Borrowing Subsidiary to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent suspended, and each Advance comprising such Borrowing shall notify the Borrowers and the be a Base Rate Advance. The Lenders that will review regularly the circumstances causing such suspension suspension, and as soon as such circumstances no longer exist, exist the Required Lenders will notify the Administrative Agent and each A Advance comprising the Administrative Agent will notify the Borrower that such A Borrowing shall be made as a Base Rate Advancesuspension is terminated.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting or Borrowing Subsidiary, as the proposed A Borrowingcase may be. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting or Borrowing Subsidiary, as the proposed A Borrowing case may be, shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding in any event loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ’s ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's ’s A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice given by the Borrower or a Borrowing Subsidiary, given as the case may be, and received by the Administrative Agent, which shall give prompt notice thereof to each Lender by telecopier or telex, not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing consisting in the case of Eurodollar Rate Advances, by or the Borrower requesting same Business Day in the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cablecase of Base Rate Advances. Each such notice of an A Borrowing (a "Notice of NOTICE OF A BorrowingBORROWING") shall be given by telecopier, telex or cable, confirmed immediately in writingby hand or by mail, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower mayUpon fulfillment of the applicable conditions set forth in Article III, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each each Lender shall, before 1:00 P.M. 12:00 noon (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.02the Administrative Agent's Account, in same day immediately available funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will promptly make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid addressaddress referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding,:
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Administrative Agent shall immediately notify the Borrowers that such Borrower and each other Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower and any Borrowing Subsidiary to select Eurodollar Rate Advances for the portion of such A Borrowing advanced by the Lender which has provided the notice described above or the portion of any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances advanced by such Lender shall forthwith be suspended until the Agent such Lender shall notify the Borrowers Administrative Agent and the Administrative Agent will notify the Borrower that the circumstances causing such suspension no longer exist, and each A such Advance comprising such A Borrowing shall be a Base Rate Advance;
(ivii) if fewer than two no Reference Banks furnish Bank furnishes timely information to the Administrative Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the Administrative Agent shall immediately notify each Lender and the Borrower and the right of a the Borrower and any Borrowing Subsidiary to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Administrative Agent shall notify the Borrowers Lenders and the Lenders Borrower that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(viii) if the Majority Required Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Administrative Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Required Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the Administrative Agent shall immediately notify the Borrower and each other Lender and the right of a the Borrower and any Borrowing Subsidiary to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent suspended, and each Advance comprising such Borrowing shall notify the Borrowers and the be a Base Rate Advance. The Lenders that will review regularly the circumstances causing such suspension suspension, and as soon as such circumstances no longer exist, exist the Required Lenders will notify the Administrative Agent and each A Advance comprising the Administrative Agent will notify the Borrower that such A Borrowing shall be made as a Base Rate Advancesuspension is terminated.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting or Borrowing Subsidiary, as the proposed A Borrowingcase may be. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting or Borrowing Subsidiary, as the proposed A Borrowing case may be, shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding in any event loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, notice given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (yi) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing, if such proposed A Borrowing consisting consists of Eurodollar Rate Advances and (ii) 10:00 A.M. (New York City time) on the day of such proposed A Borrowing, if such proposed A Borrowing consists of Base Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each A Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex telecopier or cabletelephone (and if by telephone, confirmed immediately in writing), in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, Borrowing and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. Each A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. 12:00 noon (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.0210.02, in same day funds, such A Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article IIIV, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before 1,000,000 multiplied by the date number of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate AdvanceLenders.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each A Lender against any loss, cost or expense incurred by such A Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIV, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such A Lender to fund the A Advance to be made by such A Lender as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a an A Lender (i) in the case of any A Borrowing consisting of (A) Eurodollar Rate Advances or (B) Base Rate Advances for which the Notice of A Borrowing is given other than on the date thereof, prior to the date of such A Borrowing or (ii) in the case of any A Borrowing consisting of Base Rate Advances for which the Notice of A Borrowing is given on the date thereof, prior to the time at which such A Lender is required to fund such A Borrowing, which notice shall in either case state that such A Lender will not make available to the Agent such A Lender's ratable portion of such A Borrowing, the Agent may assume that such A Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such A Lender shall not have so made such ratable portion available to the Agent, such A Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, Agent at (ix) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (iiy) in the case of such A Lender, the Federal Funds Rate. If such A Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such A Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any A Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other A Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no A Lender shall be responsible for the failure of any other A Lender to make the A Advance to be made by such other A Lender on the date of any A Borrowing.
(f) The Borrower shall, if requested by any A Lender, execute and deliver a promissory note, in substantially the form of Exhibit E-1 hereto, payable to the order of such A Lender in an original principal amount equal to such A Lender's A Commitment, duly executed by the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Gap Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time)
(i) on the date same Business Day as the proposed A Borrowing in the case of a proposed an A Borrowing consisting of Base Rate Advances and or (y) 12:00 noon (New York City timeii) on the third Business Day prior to the date of a the proposed A Borrowing in the case of an A Borrowing consisting of Eurodollar Rate LIBOR Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, or by telex or cable, cable (confirmed immediately in writing), in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate LIBOR Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid addressaddress not later than 2:00 P.M. (New York City time) on such date.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate LIBOR Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance20,000,000.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate LIBOR Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender (i) by 12:00 Noon (New York City time) on the date of any A Borrowing in the case of any A Borrowing consisting of Base Rate Advances or (ii) by 12:00 Noon (New York City time) on the Business Day prior to the date of any A Borrowing consisting of LIBOR Advances that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available by the Agent to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Supervalu Inc)
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower to the Administrative Agent (a "NOTICE OF A BORROWING") received by the Administrative Agent, given (i) in the case of a proposed A Borrowing comprised of Base Rate Advances, not later than (x) 10:00 A.M. (New York City time) on the date Business Day of such proposed A Borrowing, and (ii) in the case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) Advances, not later than 12:00 noon (New York City time) on the third Business Day prior to the date of a such proposed A Borrowing consisting Borrowing. Each Notice of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agentshall be by telecopy, which shall give to each Lender prompt notice thereof telefax or other teletransmission or by telephone (and if by telephone, confirmed promptly by telecopier, telex telefax or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writingother teletransmission), in substantially the form of Exhibit A-1 B hereto, specifying therein the requested (iw) date of such A Borrowing, (iix) Type of A Advances comprising such A Borrowing, (iiiy) aggregate amount of such A Borrowing, and (ivz) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. p.m. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent in care of JPMorgan Chase Bank, Agency Services, Xxx Xxxxx Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, Reference: Burlington Resources Inc., or at its address referred such other location designated by notice from the Administrative Agent to in the Lenders pursuant to Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After Immediately after the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III3, the Administrative Agent will make such funds available to the Borrower requesting at JPMorgan Chase Bank, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at any account of the proposed A Borrowing at Borrower maintained by the Administrative Agent (or any successor Administrative Agent's aforesaid address) designated by the Borrower and agreed to by the Administrative Agent (or such successor Administrative Agent), in same day funds.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies specified is to be comprised of Eurodollar Rate Advances, if such A Advances are not made as a result of any failure to fulfill on or before the date specified for such A Borrowing the applicable conditions set forth in Article 3, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of such failure, including any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIBorrowing.
(dc) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Effective Federal Funds RateRate for such day. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance to the Borrower as part of such A Borrowing for purposes of this Agreement.
(ed) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Long Term Revolving Credit Agreement (Burlington Resources Inc)
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex mail or cabledelivery. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex mail or cabledelivery, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A The Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers Borrower that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers Borrower that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or -------- assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Long Term Facility) (Computer Sciences Corp)
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower to the Administrative Agent (a "NOTICE OF A BORROWING") received by the Administrative Agent, given (i) in the case of a proposed A Borrowing comprised of Base Rate Advances, not later than (x) 10:00 A.M. (New York City time) on the date Business Day of such proposed A Borrowing, and (ii) in the case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) Advances, not later than 12:00 noon (New York City time) on the third Business Day prior to the date of a such proposed A Borrowing consisting Borrowing. Each Notice of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agentshall be by telecopy, which shall give to each Lender prompt notice thereof telefax or other teletransmission or by telephone (and if by telephone, confirmed promptly by telecopier, telex telefax or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writingother teletransmission), in substantially the form of Exhibit A-1 B hereto, specifying therein the requested (iw) date of such A Borrowing, (iix) Type of A Advances comprising such A BorrowingBorrowing and, additionally, whether such A Borrowing consists of Revolving A Advances or Term A Advances, (iiiy) aggregate amount of such A Borrowing, and (ivz) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. p.m. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent in care of JPMorgan Chase Bank, Agency Services, Xxx Xxxxx Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxxxxx, Reference: Burlington Resources Inc., or at its address referred such other location designated by notice from the Administrative Agent to in the Lenders pursuant to Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After Immediately after the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III3, the Administrative Agent will make such funds available to the Borrower requesting at JPMorgan Chase Bank, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, or at any account of the proposed A Borrowing at Borrower maintained by the Administrative Agent (or any successor Administrative Agent's aforesaid address) designated by the Borrower and agreed to by the Administrative Agent (or such successor Administrative Agent), in same day funds.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies specified is to be comprised of Eurodollar Rate Advances, if such A Advances are not made as a result of any failure to fulfill on or before the date specified for such A Borrowing the applicable conditions set forth in Article 3, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of such failure, including any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such Borrowing.
(c) If any Lender makes a Term A Advance to the Borrower hereunder on a day on which the Borrower is not to repay all or any part of an outstanding Revolving A Advance from such Lender, such Lender shall apply the proceeds of its Term A Advance to make such repayment and only an amount equal to the difference (if any) between the amount being borrowed and the amount being repaid shall be made on available by such dateLender to the Administrative Agent as provided in subsection 2.02(a), including without limitationor remitted by the Borrower to the Administrative Agent as provided in Section 2.14, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIcase may be.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection subsections (a) and (c) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Effective Federal Funds RateRate for such day. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance to the Borrower as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Short Term Revolving Credit Agreement (Burlington Resources Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x1) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances, 11:00 A.M. (New York City time) at least three Business Days prior to the date of the proposed Borrowing, and (2) in the case of a proposed Borrowing comprised of Base Rate Advances, 10:00 A.M. (New York City time) on the date of a the proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate AdvancesBorrowing, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cabletelephone, confirmed immediately in writing, or by telecopy, telex or cable in substantially the form of Exhibit A-1 B-1 hereto, executed by the Borrower and specifying therein the requested (i) date of such A BorrowingBorrowing (which shall be a Business Day), (ii) initial Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender Bank shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its New York address referred to in Section 9.028.2, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above herein to the contrary notwithstanding,:
(i) a at no time shall there be outstanding to the Borrower more than ten A Borrowings comprised of Eurodollar Rate Advances;
(ii) the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time10,000,000;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, Majority Banks shall notify the Agent that either (A) the introduction of or Eurodollar Rate for any change in or in the interpretation of Interest Period for any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances will not adequately reflect the cost to such Banks of making or to fund or maintain funding their respective Eurodollar Rate Advances hereunderfor such Interest Period, or (B) that U.S. dollar deposits for the Commitment of such Lender relevant amounts and Interest Period for their respective Advances are not available to make Eurodollar Rate Advances them in the London interbank market, or it is otherwise impossible to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding have Eurodollar Rate Advances, if anythe Agent shall forthwith so notify the Borrower and the Banks, shall be whereupon (I) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advances; Advance, and (II) the obligations of the Banks to the extent that such affected Eurodollar Rate make, or to Convert Advances become Base Rate Advancesinto, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers Borrower and the Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.2(b)(v), each A Advance comprising such any requested A Borrowing shall be a Base Rate Advance;; 364-Day Credit Agreement 16
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining is unable to determine the Adjusted Eurodollar Rate for any Eurodollar Rate Advances, the obligation of the Banks to make, or to Convert Advances into, Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.2(b)(v), each A Advance comprising such any requested A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shallBorrower has requested a proposed A Borrowing consisting of Eurodollar Rate Advances and as a result of circumstances referred to in Section 2.2(b)(iii) or (iv) such A Borrowing would not consist of Eurodollar Rate Advances, the Borrower may, by notice given not later than 3:00 P.M. (New York City time) at least one Business Day before prior to the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such proposed A Borrowing will not adequately reflect the cost to such Majority Lenders of makingwould otherwise be made, funding or maintaining their respective Eurodollar Rate Advances for cancel such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising in which case such A Borrowing shall be canceled and no Advances shall be made as a Base Rate Advanceresult of such requested A Borrowing, but the Borrower shall indemnify the Banks in connection with such cancellation as contemplated by Section 2.2(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower, except as set forth in Section 2.2(b)(v). In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to the Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense. If an A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances is not made as an A Borrowing comprised of Eurodollar Rate Advances as a result of Section 2.2(b), the Borrower shall indemnify each Bank against any loss (excluding loss of profits), cost or expense incurred by such Bank by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank prior to the time such Bank is actually aware that such A Borrowing will not be so made to fund the A Advance to be made by such Bank as part of such A Borrowing. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to the Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense.
(d) Unless the Agent shall have received notice from a Lender Bank prior to the date of any A Borrowing that such Lender Bank will not make available to the Agent such LenderBank's ratable portion of such A Borrowing, the Agent may assume that such Lender Bank has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 2.2 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion available to the Agent, such Lender Bank and such the Borrower severally agree to repay to the Agent 364-Day Credit Agreement 17 forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such LenderBank, the Federal Funds Rate. If such Lender Bank shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such LenderBank's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower to the Agent (a "Notice of A Borrowing") received by the Agent, given (i) in the case of a proposed A Borrowing comprised of Base Rate Advances, not later than (x) 10:00 A.M. (New York City time) on the date Business Day of such proposed A Borrowing, and (ii) in the case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) Advances, not later than 12:00 noon (New York City time) on the third Business Day prior to the date of a such proposed A Borrowing consisting Borrowing. Each Notice of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agentshall be by telecopy, which shall give to each Lender prompt notice thereof telefax or other teletransmission or by telephone (and if by telephone, confirmed promptly by telecopier, telex telefax or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writingother teletransmission), in substantially the form of Exhibit A-1 C hereto, specifying therein the requested (iw) date of such A Borrowing, (iix) Type of A Advances comprising such A Borrowing, (iiiy) aggregate amount of such A Borrowing, and (ivz) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. p.m. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred at Citibank, 399 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxference: Burlington Resources Inc., or at such other location designated by notice from the Agent to in the Lenders pursuant to Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After Immediately after the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting at Citibank, 399 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx at any account of the proposed A Borrowing at Borrower maintained by the Agent (or any successor Agent's aforesaid address) designated by the Borrower and agreed to by the Agent (or such successor Agent), in same day funds.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies specified is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.comprised
(dc) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Effective Federal Funds RateRate for such day. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance to the Borrower as part of such A Borrowing for purposes of this Agreement.
(ed) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Long Term Revolving Credit Agreement (Burlington Resources Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) by the Company (on behalf of the date applicable Borrower):
(w) in the case of a proposed A Borrowing consisting comprised of Base Rate Advances and (y) 12:00 noon (New York City time) Advances, to the Agent on the third date of such proposed Borrowing (but two Business Day Days prior to the date of such proposed Borrowing in the case of a Designated A Borrowing);
(x) in the case of a proposed A Borrowing consisting comprised of Eurodollar Adjusted CD Rate Advances, by to the Borrower requesting Agent two Business Days prior to the date of such proposed Borrowing (but four Business Days prior to the date of such proposed Borrowing in the case of a Designated A Borrowing);
(y) in the case of a proposed A Borrowing comprised of Eurocurrency Advances denominated in Dollars, to the Agent three Business Days prior to the date of such proposed Borrowing (but five Business Days prior to the date of such proposed Borrowing in the case of a Designated A Borrowing); and
(z) in the case of a proposed A Borrowing comprised of Eurocurrency Advances denominated in an Alternative Currency, to the Euro-Agent three Business Days prior to the date of such proposed Borrowing (but five Business Days prior to the date of such proposed Borrowing in the case of a Designated A Borrowing). The Agent or Euro-Agent, which as applicable, shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of NOTICE OF A BorrowingBORROWING") shall be by telecopiertelecopy, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 EXHIBIT B-1 hereto, specifying therein the requested (i) Borrower, (ii) date of such A Borrowing, (iiiii) Type of A Advances comprising such A Borrowing, (iiiiv) in the case of a proposed A Borrowing comprised of Eurocurrency Advances, currency of such A Advances, (v) in the case of a proposed A Borrowing comprised of Eurocurrency Advances or Adjusted CD Rate Advances, initial Interest Period for each such Advance and (vi) aggregate amount of such A Borrowing. The Company shall certify, in each Notice of A Borrowing, the Credit Ratings, if any, then in effect. In the case of an A Borrowing comprised of Eurocurrency Advances denominated in an Alternative Currency, the Company shall request, within one-half hour prior to the issuance of the applicable Notice of A Borrowing, the advice of the Euro-Agent as to the applicable exchange rate then in effect with respect to such Alternative Currency, and the Company shall specify in such Notice of A Borrowing the exchange rate so advised to it by the Euro-Agent. In the case of a proposed A Borrowing comprised of Adjusted CD Rate Advances or Eurocurrency Advances, the Agent or the Euro-Agent, as applicable, shall promptly notify each Bank and the Company of the applicable interest rate under SECTION 2.07(b) or 2.07(c), as applicable.
(ivb) Each Bank shall make available for the account of its Applicable Lending Office:
(i) in the case of an A Borrowing comprised of Eurodollar Base Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, Agent before 1:00 P.M. 12:00 noon (New York City time) in time)(or, if the case applicable Notice of a A Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case shall have been given on the date of such A Borrowing, make available before 4:00 P.M. (New York City time)) on the date of such A Borrowing, at such account maintained at the Payment Office for Dollars as shall have been notified by the account of its Applicable Lending Office Agent to the Agent at its address referred to in Section 9.02, Banks prior thereto and in same day funds, such LenderBank's ratable portion of such A Borrowing;
(ii) in the case of an A Borrowing comprised of Eurocurrency Advances denominated in Dollars or Adjusted CD Rate Advances, to the Agent before 12:00 noon (New York City time) on the date of such A Borrowing, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Banks prior thereto and in same day funds, such Bank's ratable portion of such A Borrowing in Dollars; and
(iii) in the case of an A Borrowing comprised of Eurocurrency Advances denominated in an Alternative Currency, to the Euro-Agent before 12:00 noon (London time) on the date of such A Borrowing, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Euro-Agent to the Banks prior thereto and in same day funds, such Bank's ratable portion of such A Borrowing in such Alternative Currency. After the Agent's or the Euro-Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article ARTICLE III, the Agent or the Euro-Agent, as applicable, will make such funds available to the applicable Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advanceapplicable Payment Office.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowingon whose behalf it shall have been submitted. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Eurocurrency Advances, the applicable Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense reasonably incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article ARTICLE III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent or Euro-Agent, as applicable, shall have received notice from a Lender Bank prior to the date of any A Borrowing that such Lender Bank will not make available to the Agent or Euro-Agent such LenderBank's ratable portion of such A Borrowing, the Agent or Euro-Agent, as applicable, may assume that such Lender Bank has made such portion available to the Agent it on the date of such A Borrowing in accordance with subsection SUBSECTION (ab) of this Section SECTION 2.02 and the Agent it may, in reliance upon such assumption, make (but shall not be required to make) available to the applicable Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion available to the Agent or the Euro-Agent, as applicable, such Lender Bank and such Borrower severally agree to repay to the Agent or Euro-Agent, as applicable, forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent or the Euro-Agent, as applicable, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such LenderBank, the Federal Funds RateRate or the Agent's overdraft cost, if higher. If such Lender Bank shall repay to the Agent or Euro-Agent, as applicable, such corresponding amount, such amount so repaid shall constitute such LenderBank's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (ai) Each A Borrowing shall be --------------------- made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) by the Borrower to the Lenders, (A) in the case of Adjusted CD Rate Advances, on the Business Day prior to the date of a the proposed A Borrowing consisting of Base Rate Advances and (yB) 12:00 noon (New York City time) in the case of Eurodollar Rate Advances, on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to and (C) in the Agentcase of Base Rate Advances, which shall give to each Lender prompt notice thereof by telecopier, telex or cableon the day of the proposed A Borrowing. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cabletelephone, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (iI) date of such A Borrowing, (iiII) Type of A Advances comprising such A Borrowing, (iiiIII) aggregate amount of such A Borrowing, and (ivIV) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in In the case of a proposed A Borrowing consisting comprised of Base Rate Advances, Adjusted CD Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of or Eurodollar Rate Advances, in the Borrower shall, as soon as possible, notify each case on Lender of the date applicable interest rate under Section 2.06(a), (b) or (c) and, if the Majority Lenders disagree with the calculation of the interest rate so notified by the Borrower, the Majority Lenders shall promptly notify each other Lender and the Borrower of such A Borrowing, make available for applicable interest rate. Upon the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, each Lender shall, before 2:00 P.M. (New York City time) on the Agent will date of such A Borrowing, make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, at the Agent may assume that account of the Borrower with such Lender has made in New York, New York or, if no such portion available account exists, by wire transfer to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to account as shall be specified by the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and by notice to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Ratein same day funds. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
(ii) Anything in subsection (i) above to the contrary notwithstanding,
(A) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Borrower that the introduction of or any change in or in the interpretation of any law or regulation by any court, authority or agency, or any other governmental, judicial or regulatory body, makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the right of the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing, with respect to such Lender (only), shall be suspended until such Lender shall notify the Borrower that the circumstances causing such suspension no longer exist or such Lender shall cease to be a party hereto, and each A Advance comprising such A Borrowing shall, with respect to such Lender (only), be an Adjusted CD Rate Advance (or, if the Borrower so notifies such Lender within two hours of such Lender so notifying the Borrower, a Base Rate Advance) of an equivalent amount and for an approximately equivalent term, provided that if all the Lenders so notify -------- the Borrower, the Notice of A Borrowing in respect of such requested A Borrowing shall be automatically revoked. Each Lender giving a notice under this subclause (A) shall, promptly after giving such notice, provide the Borrower with an explanation, in reasonable detail, as to the circumstances causing such suspension;
(B) if none of the Reference Banks furnish timely information to the Lenders for determining the Adjusted CD Rate for Adjusted CD Rate Advances, or the Eurodollar Rate for Eurodollar Rate Advances, comprising any requested A Borrowing, the right of the Borrower to select Adjusted CD Rate Advances or Eurodollar Rate Advances, as the case may be, for such A Borrowing or any subsequent A Borrowing shall be suspended until the Majority Lenders shall notify the Borrower and the other Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be an Adjusted CD Rate Advance or a Eurodollar Rate Advance, whichever is available (or, if neither is available or the Borrower so notifies the Lenders, a Base Rate Advance); and
(C) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Borrower that the Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to the Lenders of making or funding their respective Eurodollar Rate Advances for such A Borrowing, the Notice of A Borrowing given in respect of such requested A Borrowing shall be automatically revoked and the right of the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Majority Lenders shall notify the Borrower and the other Lenders that the circumstances causing such suspension no longer exist. The Majority Lenders giving a notice under this subclause (C) shall, promptly after giving such notice, provide the Borrower with an explanation, in reasonable detail, as to the circumstances causing such suspension.
(iii) Each Notice of A Borrowing (subject to (A) and (C) above) shall be irrevocable and binding on the Borrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Adjusted CD Rate Advances or Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date. Each Lender claiming indemnity for any such loss, cost or expense under this clause (iii) shall provide, at the time of making such claim, the Borrower with reasonable details, including the basis for the calculation thereof, of such loss, cost or expense, provided that, -------- in the absence of manifest error, the amount of such claims so notified shall be conclusive and binding upon the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Olin Corp)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing (in the case of an A Borrowing consisting of Eurodollar Rate Advances) or given not later than 11:00 A.M. (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing consisting of Base Rate Advances), by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be --------------------- by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if unless the aggregate principal amount of such A Borrowing is $10,000,000 or such Conversion or continuance is less than an integral multiple of $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change 1,000,000 in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advanceexcess thereof.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill, on or Credit Agreement ---------------- before the date specified in such Notice of A Borrowing, the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason Borrowing. The Borrower shall pay amounts owing to any Lender pursuant to this Section 2.02(c) within 30 days after receipt from such Lender of a certificate setting forth in reasonable detail the calculation of the termination of hedging or other similar arrangementsamount such Lender is entitled to claim under this Section 2.02(c) (which certificate shall be conclusive and binding for all purposes, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIabsent manifest error).
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this AgreementAgreement (and such A Advance shall be deemed to have been made by such Lender on the date on which such amount is so repaid to the Administrative Agent).
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x1) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances, 11:00 A.M. (New York City time) at least three Business Days prior to the date of the proposed Borrowing, and (2) in the case of a proposed Borrowing comprised of Base Rate Advances, 10:00 A.M. (New York City time) on the date of a the proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate AdvancesBorrowing, by the Borrower requesting the proposed such A Borrowing to the Agent, which shall give to each Lender Bank prompt notice Multi-Year Credit Agreement thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cabletelephone, confirmed immediately in writing, or by telecopy, telex or cable in substantially the form of Exhibit A-1 B-1 hereto, executed by the Borrower requesting such A Borrowing and specifying therein the requested (i) date of such A BorrowingBorrowing (which shall be a Business Day), (ii) initial Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender Bank shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its New York address referred to in Section 9.028.02, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed such A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above herein to the contrary notwithstanding,:
(i) a at no time shall there be outstanding to any one Borrower more than ten A Borrowings comprised of Eurodollar Rate Advances;
(ii) no Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time10,000,000;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, Majority Banks shall notify the Agent that either (A) the introduction of or Eurodollar Rate for any change in or in the interpretation of Interest Period for any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances will not adequately reflect the cost to such Banks of making or to fund or maintain funding their respective Eurodollar Rate Advances hereunderfor such Interest Period, or (B) that U.S. dollar deposits for the Commitment of such Lender relevant amounts and Interest Period for their respective Advances are not available to make Eurodollar Rate Advances them in the London interbank market, or it is otherwise impossible to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding have Eurodollar Rate Advances, if anythe Agent shall forthwith so notify the Borrowers and the Banks, shall be whereupon (I) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advances; Advance, and (II) the obligations of the Banks to the extent that such affected Eurodollar Rate make, or to Convert Advances become Base Rate Advancesinto, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(v), each A Advance comprising such any requested A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining is unable to determine the Adjusted Eurodollar Rate for any Eurodollar Rate Advances, the obligation of the Banks to make, or to Convert Advances into, Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(v), each A Multi-Year Credit Agreement Advance comprising such any requested A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shalla Borrower has requested a proposed A Borrowing consisting of Eurodollar Rate Advances and as a result of circumstances referred to in Section 2.02(b)(iii) or (iv) such A Borrowing would not consist of Eurodollar Rate Advances, such Borrower may, by notice given not later than 3:00 P.M. (New York City time) at least one Business Day before prior to the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such proposed A Borrowing will not adequately reflect the cost to such Majority Lenders of makingwould otherwise be made, funding or maintaining their respective Eurodollar Rate Advances for cancel such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising in which case such A Borrowing shall be cancelled and no Advances shall be made as a Base Rate Advanceresult of such requested A Borrowing, but such Borrower shall indemnify the Banks in connection with such cancellation as contemplated by Section 2.02(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrowers, except as set forth in Section 2.02(b)(v). In the case of any A Borrowing requested by a Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the such Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to such Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense. If an A Borrowing requested by a Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances is not made as an A Borrowing comprised of Eurodollar Rate Advances as a result of Section 2.02(b), such Borrower shall indemnify each Bank against any loss (excluding loss of profits), cost or expense incurred by such Bank by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank prior to the time such Bank is actually aware that such A Borrowing will not be so made to fund the A Advance to be made by such Bank as part of such A Borrowing. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to such Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense.
(d) Unless the Agent shall have received notice from a Lender Bank prior to the date of any A Borrowing to a Borrower that such Lender Bank will not make available to the Agent such LenderBank's ratable portion of such A Borrowing, the Agent may assume that such Lender Bank has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the such Borrower requesting the proposed such A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion available to the Agent, such Lender Bank and such Borrower severally agree Multi-Year Credit Agreement to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such LenderBank, the Federal Funds Rate. If such Lender Bank shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such LenderBank's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on --------------------- notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (yi) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing, if such proposed A Borrowing consisting consists of Eurodollar Rate Advances and (ii) 10:00 A.M. (New York City time) on the day of such proposed A Borrowing, if such proposed A Borrowing consists of Base Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each A Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex telex, cable or cabletelephone (and if by telephone, confirmed immediately in writing), in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, Borrowing and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. Each A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. 12:00 noon (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.02, in same day funds, such A Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article IIIIV, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before 1,000,000 multiplied by the date number of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate AdvanceLenders.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each A Lender against any loss, cost or expense incurred by such A Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIIV, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such A Lender to fund the A Advance to be made by such A Lender as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a an A Lender prior to the date of any A Borrowing that such A Lender will not make available to the Agent such A Lender's ratable portion of such A Borrowing, the Agent may assume that such A Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such A Lender shall not have so made such ratable portion available to the Agent, such A Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, Agent at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such A Lender, the Federal Funds Rate. If such A Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such A Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any A Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other A Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no A Lender shall be responsible for the failure of any other A Lender to make the A Advance to be made by such other A Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Gap Inc)
Making the A Advances. (a) Each During the Revolving Period, each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City Dallas time)
(1) on in the date case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) 12:00 noon (New York City time) on the third Advances, at least three Business Day Days prior to the date of the proposed Borrowing, and (2) in the case of a proposed A Borrowing consisting comprised of Eurodollar Base Rate Advances, on the Business Day of the proposed Borrowing, by the Borrower requesting the proposed such A Borrowing to the Agent, which shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be in writing (including by telecopiertelecopy), telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.in
(b) Anything in subsection (a) above to the contrary notwithstanding,:
(i) at no time shall there be outstanding more than five A Borrowings consisting of Eurodollar Rate Advances and one Borrowing consisting of Base Rate Advances (other than Borrowings consisting of Base Rate Advances as a result of Section 2.02(b)(iii), (iv), or (v));
(ii) the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing be made if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time20,000,000;
(iii) if any Lender Bank shall, at least one Business Day before the date of any requested A BorrowingBorrowing to be made, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender Bank or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent such Bank shall notify the Borrowers Agent that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(vi), each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference the Majority Banks furnish timely information shall, on or before the date of any requested A Borrowing to be made, notify the Agent for determining that the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested such A Borrowing will not adequately reflect the cost to such Banks of making their respective Eurodollar Rate Advances for such A Borrowing, the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers Borrower and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(vi), each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and;
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify less than two Reference Banks furnish timely information to the Agent that for determining the Adjusted Eurodollar Rate for Eurodollar Rate Advances Advances, comprising such any requested A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowingbe made, the right of a the Borrower to select Eurodollar Rate Advances Advances, as the case may be, for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders Banks that the circumstances causing such suspension no longer exist, and,
(vi) if the Borrower has requested a proposed A Borrowing consisting of Eurodollar Rate Advances and each as a result of circumstances referred to in Section 2.02(b)(iii), (iv) or (v) such A Advance comprising Borrowing would not consist of Eurodollar Rate Advances, the Borrower may, by notice given not later than 2:00 P.M. (Dallas time) at least one Business Day prior to the date such proposed A Borrowing would otherwise be made, cancel such A Borrowing, in which case such A Borrowing shall be cancelled and no Advances shall be made as a result of such requested A Borrowing, but the Borrower shall indemnify the Banks in connection with such cancellation as contemplated by Section 2.02(c); and
(vii) if the Borrower shall fail to select the duration or continuation of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of "Interest Period" in Section 1.01 and this paragraph (b), the Agent will promptly so notify the Borrower and the Banks and such A Advances will be made available to the Borrower on the date of such A Borrowing as Base Rate AdvanceAdvances.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower, except as set forth in Section 2.02(b)(vi). In the case of any A Borrowing requested by the Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of reasonably anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to the Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense. If an A Borrowing requested by the Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances is not made as an A Borrowing comprised of Eurodollar Rate Advances as a result of Section 2.02(b), the Borrower shall indemnify each Bank against any loss (excluding loss of profits), cost or expense incurred by such Bank by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank (prior to the time such Bank is actually aware that such A Borrowing will not be so made) to fund the A Advance to be made by such Bank as part of such A Borrowing. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to the Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense.
(d) Unless the Agent shall have received notice from a Lender Bank prior to the date of any A Borrowing that such Lender Bank will not make available to the Agent such LenderBank's ratable portion of such A Borrowing, the Agent may assume that such Lender Bank has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed such A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.such
Appears in 1 contract
Samples: Credit Agreement (Fina Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date day of a such proposed A Borrowing, in the case of an A Borrowing consisting comprised of Base Rate Advances and (y) 12:00 noon (New York City time) Advances, or on the third Business Day prior to the date of a the proposed A Borrowing, in the case of an A Borrowing consisting comprised of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A a Borrowing (a "Notice of NOTICE OF A BorrowingBORROWING") shall be by telecopier, telex or cable, confirmed immediately promptly in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to In the conditions herein provided, borrow more than one case of a proposed A Borrowing on any Business Daycomprised of Eurodollar Rate Advances, the Administrative Agent shall promptly notify each Lender of the applicable interest rate under Section 2.07(b). Each Lender shall, before 1:00 12:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case and, in respect of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost loss or expense incurred by such Lender as a result of any failure by the Borrower to fulfill on or before the date specified for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(dc) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent (without duplication), forthwith on demand demand, such corresponding amount amount, together with interest thereon, thereon for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (ix) in the case of such the Borrower, at the interest rate applicable at the time to A Advances comprising such A Borrowing and (iiy) in the case of such Lender, at the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(ed) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
(e) If, for any reason, an A Borrowing is not made on the date specified in any Notice of A Borrowing, the Administrative Agent hereby agrees to repay to each Lender the amount, if any, that such Lender has made available to the Administrative Agent as such Lender's ratable portion of such A Borrowing, together with interest thereon for each day from the date such amount is made available to the Administrative Agent until the date such amount is repaid to such Lender, at the Federal Funds Rate.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Cp&l Energy Inc)
Making the A Advances. (ai) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed such A Borrowing (in the case of an A Borrowing consisting of Eurodollar Rate Advances) or given not later than 11:00 A.M. (New York City time) on the Business Day of such A Borrowing (in the case of an A Borrowing consisting of Base Rate Advances), by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. thereof.
(ii) Each such notice of an A Borrowing (a "“Notice of A Borrowing"”) shall be by telecopier, telex or cable, confirmed immediately in writing, writing in substantially the form of Exhibit A-1 A–1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. .
(iii) Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ’s ratable portion of such A Borrowing. ; provided that, with respect to an A Borrowing of a Eurodollar Rate Advance, no Lender having a Commitment Termination Date prior to the last day of the initial Interest Period for such Eurodollar Rate Advance shall participate in such Borrowing.
(iv) After the Administrative Agent's ’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III3, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's ’s aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the only in an aggregate amount of such A Borrowing $10,000,000 or such Conversion or continuance is less than an integral multiple of $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change 1,000,000 in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advanceexcess thereof.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense reasonably incurred by such Lender by reason as a result of any failure to make such A Borrowing (including, without limitation, as a result of any failure to fulfill, on or before the date specified in such Notice of A Borrowing, the applicable conditions set forth in Article 3) and the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or Borrowing. A certificate as to the amount of such losses, costs and expenses, submitted to the Borrower and the Administrative Agent by reason of the termination of hedging or other similar arrangementssuch Lender, in each case when such A Advance is not made on such dateshall be conclusive and binding for all purposes, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIabsent manifest error.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ’s ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand (but without duplication) such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's ’s A Advance as part of such A Borrowing for purposes of this AgreementAgreement (and such A Advance shall be deemed to have been made by such Lender on the date on which such amount is so repaid to the Administrative Agent).
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any the other Lender Lenders of its obligation, if any, their obligations hereunder to make its an A Advance on the date of such A Borrowing, but and no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
(f) Notwithstanding anything in this Agreement to the contrary, no Lender whose Commitment Termination Date falls prior to the last day of any Interest Period for any Eurodollar Rate Advance (a “Relevant Lender”) shall participate in such Advance. Without limiting the generality of the foregoing, no Relevant Lender shall (i) participate in a Borrowing of any Eurodollar Rate Advance having an initial Interest Period ending after such Lender’s Commitment Termination Date, (ii) have any outstanding Eurodollar Rate Advance Continued for a subsequent Interest Period if such subsequent Interest Period would end after such Lender’s Commitment Termination Date or (iii) have any outstanding Base Rate Advance Converted into a Eurodollar Rate Advance if such Eurodollar Rate Advance would have an initial Interest Period ending after such Lender’s Commitment Termination Date. If any Relevant Lender has outstanding a Eurodollar Rate Advance that cannot be Continued for a subsequent Interest Period pursuant to clause (ii) above or has outstanding a Base Rate Advance that cannot be Converted into a Eurodollar Rate Advance pursuant to clause (iii) above, such Lender’s ratable share of such Eurodollar Rate Advance (in the case of said clause (ii)) shall be repaid by the Borrower on the last day of its then current Interest Period and such Lender’s ratable share of such Base Rate Advance (in the case of said clause (iii)) shall be repaid by the Borrower on the day on which the Advances of Lenders unaffected by said clause (iii) are so Converted.
Appears in 1 contract
Samples: Credit Agreement (Mony Group Inc)
Making the A Advances. (a) Each A Borrowing shall be --------------------- made on notice, notice given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (yi) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing, if such proposed A Borrowing consisting consists of Eurodollar Rate Advances and (ii) 10:00 A.M. (New York City time) on the day of such proposed A Borrowing, if such proposed A Borrowing consists of Base Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each A Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex telecopier or cable--------------------- telephone (and if by telephone, confirmed immediately in writing), in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, Borrowing and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. Each A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. 12:00 noon (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.0210.02, in same day funds, such A Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article IIIV, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before 1,000,000 multiplied by the date number of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate AdvanceLenders.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each A Lender against any loss, cost or expense incurred by such A Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIV, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such A Lender to fund the A Advance to be made by such A Lender as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a an A Lender (i) in the case of any A Borrowing consisting of (A) Eurodollar Rate Advances or (B) Base Rate Advances for which the Notice of A Borrowing is given other than on the date thereof, prior to the date of such A Borrowing or (ii) in the case of any A Borrowing consisting of Base Rate Advances for which the Notice of A Borrowing is given on the date thereof, prior to the time at which such A Lender is required to fund such A Borrowing, which notice shall in either case state that such A Lender will not make available to the Agent such A Lender's ratable portion of such A Borrowing, the Agent may assume that such A Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such A Lender shall not have so made such ratable portion available to the Agent, such A Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, Agent at (ix) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (iiy) in the case of such A Lender, the Federal Funds Rate. If such A Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such A Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any A Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other A Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no A Lender shall be responsible for the failure of any other A Lender to make the A Advance to be made by such other A Lender on the date of any A Borrowing.
(f) The Borrower shall, if requested by any A Lender, execute and deliver a promissory note, in substantially the form of Exhibit E-1 hereto, payable to the order of such A Lender in an original principal amount equal to such A Lender's A Commitment, duly executed by the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Gap Inc)
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower to the Administrative Agent (a "NOTICE OF A BORROWING") received by the Administrative Agent, given (i) in the case of a proposed A Borrowing comprised of Base Rate Advances, not later than (x) 10:00 A.M. (New York City time) on the date Business Day of such proposed A Borrowing, and (ii) in the case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) Advances, not later than 12:00 noon (New York City time) on the third Business Day prior to the date of a such proposed A Borrowing consisting Borrowing. Each Notice of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agentshall be by telecopy, which shall give to each Lender prompt notice thereof telefax or other teletransmission or by telephone (and if by telephone, confirmed promptly by telecopier, telex telefax or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writingother teletransmission), in substantially the form of Exhibit A-1 B hereto, specifying therein the requested (iw) date of such A Borrowing, (iix) Type of A Advances comprising such A Borrowing, (iiiy) aggregate amount of such A Borrowing, and (ivz) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. p.m. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred at Morgxx, 00 Wxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxference: Burlington Resources Inc., or at such other location designated by notice from the Administrative Agent to in the Lenders pursuant to Section 9.028.02, in same day funds, such Lender's ratable Lendxx'x xatable portion of such A Borrowing. After Immediately after the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III3, the Administrative Agent will make such funds available to the Borrower requesting at Morgxx, 00 Wxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, xx at any account of the proposed A Borrowing at Borrower maintained by the Administrative Agent (or any successor Administrative Agent's aforesaid address.
) designated by the Borrower and agreed to by the Administrative Agent (b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangementssuccessor Administrative Agent), in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIsame day funds.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Long Term Revolving Credit Agreement (Burlington Resources Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x1) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances, 11:00 A.M. (New York City time) at least three Business Days prior to the date of the proposed Borrowing, and (2) in the case of a proposed Borrowing comprised of Base Rate Advances, 10:00 A.M. (New York City time) on the date of a the proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate AdvancesBorrowing, by the Borrower requesting the proposed such A Borrowing to the Agent, which shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopiertelecopy, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, executed by the Borrower requesting such A Borrowing and specifying therein the requested (i) date of such A BorrowingBorrowing (which shall be a Business Day), (ii) initial Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender Bank shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its New York address referred to in Section 9.028.02, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed such A Borrowing at the Agent's aforesaid address. Notwithstanding the other provisions hereof, each Bank that is to be paid by any Borrower on December 20, 1996 any principal amount outstanding under the 1995 Credit Agreement as contemplated by Section 8.14 shall apply the proceeds of any Advance to be made by it to such Borrower on such date to pay such amount and only an amount equal to the difference (if any) between the amount of such Advance and the principal amount being so paid shall be made available by such Bank to the Agent as provided herein, or remitted by such Borrower to the Agent as provided in Section 2.13, as the case may be.
(b) Anything in subsection (a) above herein to the contrary notwithstanding,:
(i) a at no time shall there be outstanding to any one Borrower more than six A Borrowings comprised of Eurodollar Rate Advances;
(ii) no Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than (x) if such Borrowing is made by WPL, $5,000,000;
, and (iiy) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at if such Borrowing is made by any timeother Borrower, $20,000,000;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, Majority Banks shall notify the Agent that either (A) the introduction of or Eurodollar Rate for any change in or in the interpretation of Interest Period for any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances will not adequately reflect the cost to such Banks of making or to fund or maintain funding their respective Eurodollar Rate Advances hereunderfor such Interest Period, or (B) that U.S. dollar deposits for the Commitment of such Lender relevant amounts and Interest Period for their respective Advances are not available to make Eurodollar Rate Advances them in the London interbank market, or it is otherwise impossible to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding have Eurodollar Rate Advances, if anythe Agent shall forthwith so notify the Borrowers and the Banks, shall be whereupon (I) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advances; Advance, and (II) the obligations of the Banks to the extent that such affected Eurodollar Rate make, or to Convert Advances become Base Rate Advancesinto, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(v), each A Advance comprising such any requested A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining is unable to determine the Adjusted Eurodollar Rate for any Eurodollar Rate Advances, the obligation of the Banks to make, or to Convert Advances into, Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(v), each A Advance comprising such any requested A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shalla Borrower has requested a proposed A Borrowing consisting of Eurodollar Rate Advances and as a result of circumstances referred to in Section 2.02(b)(iii) or (iv) such A Borrowing would not consist of Eurodollar Rate Advances, such Borrower may, by notice given not later than 3:00 P.M. (New York City time) at least one Business Day before prior to the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such proposed A Borrowing will not adequately reflect the cost to such Majority Lenders of makingwould otherwise be made, funding or maintaining their respective Eurodollar Rate Advances for cancel such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising in which case such A Borrowing shall be cancelled and no Advances shall be made as a Base Rate Advanceresult of such requested A Borrowing, but such Borrower shall indemnify the Banks in connection with such cancellation as contemplated by Section 2.02(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrowers, except as set forth in Section 2.02(b)(v). In the case of any A Borrowing requested by a Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the such Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III., including, without limitation, any loss (including loss of reasonably anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to such Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense. If an A Borrowing requested by a Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances is not made as an A Borrowing comprised of Eurodollar Rate Advances as a result of Section 2.02(b), such Borrower shall indemnify each Bank against any loss (excluding loss of profits), cost or expense incurred by such Bank by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank prior to the time such Bank is
(d) Unless the Agent shall have received notice from a Lender Bank prior to the date of any A Borrowing to a Borrower that such Lender Bank will not make available to the Agent such LenderBank's ratable portion of such A Borrowing, the Agent may assume that such Lender Bank has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the such Borrower requesting the proposed such A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion available to the Agent, such Lender Bank and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such LenderBank, the Federal Funds Rate. If such Lender Bank shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such LenderBank's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;that
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.is
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Short Term Facility) (Computer Sciences Corp)
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex mail or cabledelivery. Each such notice of an A Borrowing (a "“Notice of A Borrowing"”) shall be by telecopier, telex mail or cabledelivery, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A The Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A BorrowingBorrow-ing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers Borrower that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers Borrower that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each During the Revolving Period, each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on (a) in the date case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and Advances, at least three (y3) 12:00 noon (New York City time) on the third Business Day Days prior to the date of the proposed A Borrowing, and (b) in the case of a proposed A Borrowing consisting comprised of Eurodollar Base Rate Advances, on the Business Day of the proposed A Borrowing, by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be in writing (including by telecopier, telex or cable, confirmed immediately in writingtelecopy), in substantially the form of Exhibit A-1 B-1 hereto, specifying therein executed by the Borrower. Each Notice of A Borrowing shall refer to this Agreement and shall specify the requested (i) date of such A BorrowingBorrowing (which shall be a Business Day), (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate principal amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A AdvanceBorrowing. No Fixed Rate Advance shall be requested in, or made pursuant to, a Notice of A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business DayBorrowing. Each Lender Bank shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such a proposed A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.0210.02, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date third (or, in the case of a proposed A Borrowing consisting of Base Rate Advances and (yAdvance, the first) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing consisting of Eurodollar Rate AdvancesBorrowing, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, cable confirmed immediately by mail or delivery in writing, in substantially the form of Exhibit A-1 heretoB-1, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) 5,000,000 or if any Lender shall, at least one Business Day before the date obligation of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder Lenders to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith then be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; pursuant to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate AdvanceSection 2.08.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
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Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower to the Administrative Agent (a "NOTICE OF A BORROWING") received by the Administrative Agent, given (i) in the case of a proposed A Borrowing comprised of Base Rate Advances, not later than (x) 10:00 A.M. (New York City time) on the date Business Day of such proposed A Borrowing, and (ii) in the case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) Advances, not later than 12:00 noon (New York City time) on the third Business Day prior to the date of a such proposed A Borrowing consisting Borrowing. Each Notice of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agentshall be by telecopy, which shall give to each Lender prompt notice thereof telefax or other teletransmission or by telephone (and if by telephone, confirmed promptly by telecopier, telex telefax or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writingother teletransmission), in substantially the form of Exhibit A-1 B hereto, specifying therein the requested (iw) date of such A Borrowing, (iix) Type of A Advances comprising such A BorrowingBorrowing and, additionally, whether such A Borrowing consists of Revolving A Advances or Term A Advances, (iiiy) aggregate amount of such A Borrowing, and (ivz) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. p.m. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent in care of JPMorgan Chase Bank, Loan and Agency Services, 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxxxxxx, Reference: Burlington Resources Inc., or at its address referred such other location designated by notice from the Administrative Agent to in the Lenders pursuant to Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After Immediately after the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III3, the Administrative Agent will make such funds available to the Borrower requesting at JPMorgan Chase Bank, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, or at any account of the proposed A Borrowing at Borrower maintained by the Administrative Agent (or any successor Administrative Agent's aforesaid address) designated by the Borrower and agreed to by the Administrative Agent (or such successor Administrative Agent), in same day funds.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies specified is to be comprised of Eurodollar Rate Advances, if such A Advances are not made as a result of any failure to fulfill on or before the date specified for such A Borrowing the applicable conditions set forth in Article 3, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of such failure, including any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such Borrowing.
(c) If any Lender makes a Term A Advance to the Borrower hereunder on a day on which the Borrower is not to repay all or any part of an outstanding Revolving A Advance from such Lender, such Lender shall apply the proceeds of its Term A Advance to make such repayment and only an amount equal to the difference (if any) between the amount being borrowed and the amount being repaid shall be made on available by such dateLender to the Administrative Agent as provided in subsection 2.02(a), including without limitationor remitted by the Borrower to the Administrative Agent as provided in Section 2.14, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIcase may be.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection subsections (a) and (c) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Effective Federal Funds RateRate for such day. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance to the Borrower as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Short Term Revolving Credit Agreement (Burlington Resources Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing (in the case of an A Borrowing consisting of Eurodollar Rate Advances) or given not later than 11:00 A.M. (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing consisting of Base Rate Advances), by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "“Notice of A Borrowing"”) shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ’s ratable portion of such A Borrowing. After the Administrative Agent's ’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's ’s aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not only select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the in an aggregate amount of such A Borrowing $10,000,000 or such Conversion or continuance is less than an integral multiple of $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change 1,000,000 in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advanceexcess thereof.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill, on or before the date specified in such Notice of A Borrowing, the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason Borrowing. The Borrower shall pay amounts owing to any Lender pursuant to this Section 2.02(c) within 30 days after receipt from such Lender of a certificate setting forth in reasonable detail the calculation of the termination of hedging or other similar arrangementsamount such Lender is entitled to claim under this Section 2.02(c) (which certificate shall be conclusive and binding for all purposes, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIabsent manifest error).
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ’s ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's ’s A Advance as part of such A Borrowing for purposes of this AgreementAgreement (and such A Advance shall be deemed to have been made by such Lender on the date on which such amount is so repaid to the Administrative Agent).
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing (in the case of an A Borrowing to consist of Eurocurrency Rate Advances), or by 11:00 A.M. (New York City time) on the day of the proposed A Borrowing (in the case of an A Borrowing to consist of Base Rate Advances), by the Company (on its own behalf and on behalf of the other Borrowers) to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex telecopier or cableby telex. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopiertelecopier or by telex, telex or cable, --------------------- confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) the date of such A Borrowing, (ii) the Type of A Advances comprising such A Borrowing, (iii) the aggregate amount of such A BorrowingBorrowing and the Currency thereof (except that Base Rate Advances must be denominated in Dollars), and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Eurocurrency Rate Advances, the initial Interest Period for each such A Advance. Advance and (v) the name of the Borrower of such A Borrower may, subject to Advance (which shall be the conditions herein provided, borrow more than one A Borrowing on any Business DayCompany or a Designated Borrower). Each Lender shallshall on the date of such A Borrowing, before 11:00 A.M. (New York City time), in the case of an A Borrowing to consist of Eurocurrency Rate Advances, and before 1:00 P.M. (New York City time) ), in the case of a an A Borrowing consisting to consist of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in the relevant Currency and in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing Company at the Administrative Agent's aforesaid addressaddress (or, in the case of an A Borrowing by a Designated Borrower, the Administrative Agent will make such funds available to the relevant Borrower in such manner as the Administrative Agent and the Company may agree).
(b) Anything in subsection (a) above to the contrary notwithstanding,
notwithstanding (i1) a no Borrower may not select Eurodollar Eurocurrency Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount obligation of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating the Lenders to Eurodollar make Eurocurrency Rate Advances outstanding at any time;
shall then be suspended pursuant to Section 2.08 or 2.12 (iiiexcept as otherwise provided in Section 2.12(b)(ii)) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of and (2) Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advancedenominated solely in Dollars.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingCompany and each Designated Borrower. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised consist of Eurodollar Eurocurrency Rate Advances, the Company (and, if a Designated Borrower requesting is the proposed borrower of the related A Borrowing Advances, such Designated Borrower) shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any revocation of such Notice of A Borrowing by the Company (or such Designated Borrower) or any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such revocation or failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.. AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing (in the case of an A Borrowing to consist of Eurocurrency Rate Advances) and not later than 12:00 Noon (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing to consist of Base Rate Advances) that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower requesting the proposed A Borrowing on such date a corresponding amount; provided that nothing in this subsection (d) shall be construed to relieve any Lender from any obligation hereunder to make available to the Administrative Agent its ratable portion of such A Borrowing in accordance with subsection (a) of this Section 2.02. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the relevant Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the relevant Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such Borrower, the interest rate applicable at the such time to the A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (xA) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing consisting of if the Borrower selects a Eurodollar Rate AdvancesAdvance or (B) 11:00 A.M. (New York City time) on the date of the proposed A Borrowing (which shall be a Business Day) if the Borrower selects a Base Rate Advance, by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cabletelecopier. Each such notice of an A Borrowing Borrowing
(a "" Notice of A Borrowing") shall be by telecopier, telex or cabletelecopier, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, Borrowing and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to In the conditions herein provided, borrow more than one case of a proposed A Borrowing on any Business Daycomprised of Eurodollar Rate Advances, the Administrative Agent shall promptly notify each Lender of the applicable interest rate under Section 2.07(a)(ii). Each Lender shall, before 1:00 P.M. (New York City time), (x) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A BorrowingBorrowing if the Borrower selects a Eurodollar Rate Advance or (y) on the date of such A Borrowing if the Borrower selects a Base Rate Advance, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount obligations of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder Lenders to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith then be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; pursuant to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality Section 2.08 or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance2.12.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill, on or before the date specified in such Notice of A Borrowing for such A Borrowing, the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.the
Appears in 1 contract
Samples: Revolving Credit Agreement (Corn Products International Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x1) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances, 11:00 A.M. (New York City time) at least three Business Days prior to the date of the proposed Borrowing, and (2) in the case of a proposed Borrowing comprised of Base Rate Advances, 10:00 A.M. (New York City time) on the date of a the proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate AdvancesBorrowing, by the Borrower requesting the proposed such A Borrowing to the Agent, which shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cabletelephone, confirmed immediately in writing, or by telecopy, telex or cable in substantially the form of Exhibit A-1 B-1 hereto, executed by the Borrower requesting such A Borrowing and specifying therein the requested (i) date of such A BorrowingBorrowing (which shall be a Business Day), (ii) initial Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender Bank shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its New York address referred to in Section 9.028.02, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed such A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above herein to the contrary notwithstanding,:
(i) a at no time shall there be outstanding to any one Borrower more than ten A Borrowings comprised of Eurodollar Rate Advances;
(ii) no Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time10,000,000;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, Majority Banks shall notify the Agent that either (A) the introduction of or Eurodollar Rate for any change in or in the interpretation of Interest Period for any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances will not adequately reflect the cost to such Banks of making or to fund or maintain funding their respective Eurodollar Rate Advances hereunderfor such Interest Period, or (B) that U.S. dollar deposits for the Commitment of such Lender relevant amounts and Interest Period for their respective Advances are not available to make Eurodollar Rate Advances them in the London interbank market, or it is otherwise impossible to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding have Eurodollar Rate Advances, if anythe Agent shall forthwith so notify the Borrowers and the Banks, shall be whereupon (I) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advances; Advance, and (II) the obligations of the Banks to the extent that such affected Eurodollar Rate make, or to Convert Advances become Base Rate Advancesinto, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent Agent, at the request of the Majority Banks, shall notify the Borrowers and the Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(v), each A Advance comprising such any requested A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining is unable to determine the Adjusted Eurodollar Rate for any Eurodollar Rate Advances, the obligation of the Banks to make, or to Convert Advances into, Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders Banks that the circumstances causing such suspension no longer exist, and and, except as provided in Section 2.02(b)(v), each A Advance comprising such any requested A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shalla Borrower has requested a proposed A Borrowing consisting of Eurodollar Rate Advances and as a result of circumstances referred to in Section 2.02(b)(iii) or (iv) such A Borrowing would not consist of Eurodollar Rate Advances, such Borrower may, by notice given not later than 3:00 P.M. (New York City time) at least one Business Day before prior to the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such proposed A Borrowing will not adequately reflect the cost to such Majority Lenders of makingwould otherwise be made, funding or maintaining their respective Eurodollar Rate Advances for cancel such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising in which case such A Borrowing shall be cancelled and no Advances shall be made as a Base Rate Advanceresult of such requested A Borrowing, but such Borrower shall indemnify the Banks in connection with such cancellation as contemplated by Section 2.02(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrowers, except as set forth in Section 2.02(b)(v). In the case of any A Borrowing requested by a Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the such Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to such Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense. If an A Borrowing requested by a Borrower which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances is not made as an A Borrowing comprised of Eurodollar Rate Advances as a result of Section 2.02(b), such Borrower shall indemnify each Bank against any loss (excluding loss of profits), cost or expense incurred by such Bank by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank prior to the time such Bank is actually aware that such A Borrowing will not be so made to fund the A Advance to be made by such Bank as part of such A Borrowing. A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to such Borrower and the Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense.
(d) Unless the Agent shall have received notice from a Lender Bank prior to the date of any A Borrowing to a Borrower that such Lender Bank will not make available to the Agent such LenderBank's ratable portion of such A Borrowing, the Agent may assume that such Lender Bank has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the such Borrower requesting the proposed such A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion available to the Agent, such Lender Bank and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such LenderBank, the Federal Funds Rate. If such Lender Bank shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such LenderBank's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon Noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing consisting in the case of Eurodollar Rate Advances, by on the Borrower requesting second Business Day prior to the date of the proposed A Borrowing in the case of Adjusted CD Rate Advances, and on the Business Day prior to the date of the proposed A Borrowing in the case of Base Rate Advances, by PM Companies to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance, and (v) name of the Borrower. A Borrower may, subject to In the conditions herein provided, borrow more than one case of a proposed A Borrowing on any Business Daycomprised of Adjusted CD Rate Advances or Eurodollar Rate Advances, the Agent shall promptly notify each Lender of the applicable interest rate under Section 2.07(b) or (c). Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.0210.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the applicable Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Loan and Guaranty Agreement (Philip Morris Companies Inc)
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex mail or cabledelivery. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex mail or cabledelivery, confirmed immediately in writing, in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A The Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, shall notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers Borrower that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers Borrower that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make make
its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing consisting (in the case of an A Borrowing to be comprised of Eurodollar Rate Advances), or by 11:00 A.M. (New York City time) on the day of the proposed A Borrowing (in the case of an A Borrowing to be comprised of Base Rate Advances), by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex telecopier or cableby telex. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex telecopier or cableby telex, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. Each Lender shall on the date of such A Borrower mayBorrowing, subject to before 11:00 A.M. (New York City time), in the conditions herein provided, borrow more than one case of an A Borrowing on any Business Day. Each Lender shallto be comprised of Eurodollar Rate Advances, and before 1:00 P.M. (New York City time) ), in the case of a an A Borrowing consisting to be comprised of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount obligation of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder Lenders to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith then be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; pursuant to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been Section 2.08 or 2.12 (except as otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advancein Section 2.12(b)(ii)).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any revocation of such Notice of A Borrowing by the Borrower or any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost 26 - 22- or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such revocation or failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing (in the case of an A Borrowing to be comprised of Eurodollar Rate Advances) and not later than 12:00 Noon (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing to be comprised of Base Rate Advances) that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount; provided that nothing in this subsection (d) shall be construed to relieve any Lender from any obligation hereunder to make available to the Administrative Agent its ratable portion of such A Borrowing in accordance with subsection (a) of this Section 2.02. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the such time to the A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Solutia Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing (in the case of an A Borrowing consisting of Eurodollar Rate Advances) or given not later than 11:00 A.M. (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing consisting of Base Rate Advances), by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance10,000,000.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits not to exceed 15 basis points on the principal amount of such A Borrowing), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Trinova Corp)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) (i) on the date same Business Day as the proposed A Borrowing in the case of a proposed an A Borrowing consisting of Base Rate Advances and or (y) 12:00 noon (New York City timeii) on the third Business Day prior to the date of a the proposed A Borrowing in the case of an A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid addressaddress not later than 2:00 P.M. (New York City time) on such date.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance20,000,000.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender (i) by 12:00 Noon on the date of any A Borrowing in the case of any A Borrowing consisting of Base Rate Advances or (ii) by 12:00 Noon on the Business Day prior to the date of any A Borrowing consisting of Eurodollar Rate Advances that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Supervalu Inc)
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice given by the Borrower or a Borrowing Subsidiary, given as the case may be, and received by the Administrative Agent, which shall give prompt notice thereof to each Lender by telecopier or telex, not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing consisting in the case of Eurodollar Rate Advances, by or the Borrower requesting same Business Day in the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cablecase of Base Rate Advances. Each such notice of an A Borrowing (a "“Notice of A Borrowing"”) shall be given by telecopier, telex or cable, confirmed immediately in writingby hand or by mail, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower mayUpon fulfillment of the applicable conditions set forth in Article III, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each each Lender shall, before 1:00 P.M. 12:00 noon (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.02the Administrative Agent’s Account, in same day immediately available funds, such Lender's ’s ratable portion of such A Borrowing. After the Administrative Agent's ’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will promptly make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address’s address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding,:
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Administrative Agent shall immediately notify the Borrowers that such Borrower and each other Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a the Borrower and any Borrowing Subsidiary to select Eurodollar Rate Advances for the portion of such A Borrowing advanced by the Lender which has provided the notice described above or the portion of any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances advanced by such Lender shall forthwith be suspended until the Agent such Lender shall notify the Borrowers Administrative Agent and the Administrative Agent will notify the Borrower that the circumstances causing such suspension no longer exist, and each A such Advance comprising such A Borrowing shall be a Base Rate Advance;
(ivii) if fewer than two no Reference Banks furnish Bank furnishes timely information to the Administrative Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the Administrative Agent shall immediately notify each Lender and the Borrower and the right of a the Borrower and any Borrowing Subsidiary to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Administrative Agent shall notify the Borrowers Lenders and the Lenders Borrower that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(viii) if the Majority Required Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Administrative Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Required Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the Administrative Agent shall immediately notify the Borrower and each other Lender and the right of a the Borrower and any Borrowing Subsidiary to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent suspended, and each Advance comprising such Borrowing shall notify the Borrowers and the be a Base Rate Advance. The Lenders that will review regularly the circumstances causing such suspension suspension, and as soon as such circumstances no longer exist, exist the Required Lenders will notify the Administrative Agent and each A Advance comprising the Administrative Agent will notify the Borrower that such A Borrowing shall be made as a Base Rate Advancesuspension is terminated.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting or Borrowing Subsidiary, as the proposed A Borrowingcase may be. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting or Borrowing Subsidiary, as the proposed A Borrowing case may be, shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding in any event loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ’s ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's ’s A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on noticenotice by the Borrower to the Administrative Agent (a "NOTICE OF A BORROWING") received by the Administrative Agent, given (i) in the case of a proposed A Borrowing comprised of Base Rate Advances, not later than (x) 10:00 A.M. (New York City time) on the date Business Day of such proposed A Borrowing, and (ii) in the case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) Advances, not later than 12:00 noon (New York City time) on the third Business Day prior to the date of a such proposed A Borrowing consisting Borrowing. Each Notice of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agentshall be by telecopy, which shall give to each Lender prompt notice thereof telefax or other teletransmission or by telephone (and if by telephone, confirmed promptly by telecopier, telex telefax or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writingother teletransmission), in substantially the form of Exhibit A-1 B hereto, specifying therein the requested (iw) date of such A Borrowing, (iix) Type of A Advances comprising such A Borrowing, (iiiy) aggregate amount of such A Borrowing, and (ivz) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. p.m. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent in care of JPMorgan Chase Bank, Agency Services, One Chase Manhattan Plaza, 8th Floor, New York, NY 10081, Attention: Xxxxxxx Xxxxxxx, Xxxxxxxxx: Xxxxxxxxxx Xxxxxxxxx Xxx., or at its address referred such otxxx xxxxxxxx xxsignated by notice from the Administrative Agent to in the Lenders pursuant to Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After Immediately after the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III3, the Administrative Agent will make such funds available to the Borrower requesting at JPMorgan Chase Bank, One Chase Manhattan Plaza, 8th Floor, New York, NY 10081, or at any account of xxx Xxxxxxxx xxxxxxxxxx xx xxx Xxxxxxxxxxxxxx Agent (or any successor Administrative Agent) designated by the proposed A Borrowing at Borrower and agreed to by the Administrative Agent (or such successor Administrative Agent's aforesaid address), in same day funds.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies specified is to be comprised of Eurodollar Rate Advances, if such A Advances are not made as a result of any failure to fulfill on or before the date specified for such A Borrowing the applicable conditions set forth in Article 3, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of such failure, including any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIBorrowing.
(c) [ Reserved. ]
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection Subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Effective Federal Funds RateRate for such day. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance to the Borrower as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Bridge Revolving Credit Agreement (Burlington Resources Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing (in the case of an A Borrowing consisting of Eurodollar Rate Advances) or given not later than 11:00 A.M. (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing consisting of Base Rate Advances), by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if unless the aggregate principal amount of such A Borrowing is $10,000,000 or such Conversion or continuance is less than an Credit Agreement integral multiple of $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change 1,000,000 in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advanceexcess thereof.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill, on or before the date specified in such Notice of A Borrowing, the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason Borrowing. The Borrower shall pay amounts owing to any Lender pursuant to this Section 2.02(c) within 30 days after receipt from such Lender of a certificate setting forth in reasonable detail the calculation of the termination of hedging or other similar arrangementsamount such Lender is entitled to claim under this Section 2.02(c) (which certificate shall be conclusive and binding for all purposes, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIabsent manifest error).
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this AgreementAgreement (and such A Advance shall be deemed to have been made by such Lender on the date on which such amount is so repaid to the Administrative Agent).
(e) The failure of any Lender to make the A Advance to be made Credit Agreement by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given by the Borrower:
(i) in the case of a proposed A Borrowing comprised of Base Rate Advances, to the Agent not later than (x) 10:00 10:30 A.M. (New York City time) on the Business Day that is the date of the proposed A Borrowing; and
(ii) in the case of a proposed A Borrowing consisting comprised of Base Eurodollar Rate Advances and (y) 12:00 noon Advances, to the Agent not later than 10:30 A.M. (New York City time) on the third Business Day prior to the date of a such proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which Borrowing. The Agent shall give to each Lender Bank prompt notice thereof by telecopiertelecopy, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopiertelecopy, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) Interest Period for each such A Advance and (iv) aggregate amount of such A Borrowing. The Borrower shall certify, in each Notice of A Borrowing, the Level then in effect.
(b) Each Bank shall make available for the account of its Applicable Lending Office:
(i) in the case of an A Borrowing comprised of Base Rate Advances, to the Agent before 12:00 noon (New York City time)(or, if the applicable Notice of A Borrowing shall have been given on the date of such A Borrowing, before 4:00 P.M. (New York City time)) on the date of such A Borrowing, at such account maintained at the Payment Office as shall have been notified by the Agent to the Banks prior thereto and in same day funds, such Bank's Pro Rata Share of such A Borrowing; and
(ivii) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, Agent before 1:00 P.M. 12:00 noon (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for at such account maintained at the account of its Applicable Lending Payment Office as shall have been notified by the Agent to the Agent at its address referred to in Section 9.02, Banks prior thereto and in same day funds, such LenderBank's ratable portion Pro Rata Share of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article IIIV, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid addressapplicable Payment Office.
(bc) Anything in subsection (a) above hereinabove to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender Bank shall, at least one Business Day before the date of any requested A BorrowingBorrowing comprised of or any requested Conversion to Eurodollar Rate Advances, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender Bank or its Eurodollar Applicable Lending Office to perform its obligations hereunder generally to make Eurodollar Rate Advances or to make, fund or maintain Eurodollar Rate Advances hereunderAdvances, the Commitment right of such Lender the Borrower to make select or Convert to Eurodollar Rate Advances or to Convert all for existing A Advances from such Bank or any portion of Base Rate subsequent A Advances from such Bank shall forthwith be suspended until the Agent such Bank shall notify the Borrowers that such Lender has determined Agent that the circumstances causing such suspension no longer exist exist, and each such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments A Advance comprising part of principal that would have been an A Borrowing otherwise applied to such comprised of Eurodollar Rate Advances shall be applied instead a Base Rate Advance; or
(ii) if the Majority Banks shall, at least one Business Day before the date of any requested A Borrowing or Conversion, notify the Agent that the Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing or Conversion, will not adequately reflect the cost to such Lender's Base Majority Banks of making or funding their respective Eurodollar Rate Advances; provided that if Majority Lenders are subject to the same illegality Advances for such A Borrowing or assertion of illegalityConversion, then the right of a the Borrower to select Eurodollar Rate Advances for such A Borrowing or Conversion, or to select such currency for any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances Conversion, shall forthwith be suspended until the Agent shall notify the Borrowers Borrower and the Banks that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
Advance on the requested date of Borrowing or Conversion. In either such case, (ivA) if fewer than two Reference Banks furnish timely information to each affected Bank shall advise the Agent for determining and the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A BorrowingBorrower in a written notice setting forth the applicable circumstances in reasonable detail, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until and (B) the Agent shall notify the Borrowers and the Lenders shall, upon becoming aware that the circumstances causing any such suspension no longer existapply, and each A Advance comprising promptly so notify the Borrower, provided that the failure of the Agent to so notify the Borrower shall not impair the rights of the Banks under this Section 2.02(c) or expose the Agent to any liability. In the case of any notice given to the Borrower under clause (i) or (ii) above, the Borrower may, upon its receipt of such notice, elect to revoke the applicable Notice of A Borrowing shall be made as a Base Rate Advance; and
(v) if by forthwith providing written notice of such revocation to the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate AdvanceAgent.
(cd) Each Except as otherwise provided in Section 2.02(c), each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, Bank as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIV or as a result of the revocation by the Borrower of such Notice of A Borrowing under Section 2.02(c), in each case including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank to fund the A Advance to be made by such Bank as part of such A Borrowing when such A Advance, as a result of such failure or revocation, is not made on such date.
(de) Unless the Agent shall have received notice from a Lender Bank prior to the date of any A Borrowing that such Lender Bank will not make available to the Agent such LenderBank's ratable portion Pro Rata Share of such A Borrowing, the Agent may assume that such Lender Bank has made such portion available to the Agent it on the date of such A Borrowing in accordance with subsection (ab) of this Section 2.02 and the Agent it may, in reliance upon such assumption, make (but shall not be required to make) available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion Pro Rata Share available to the Agent, such Lender Bank and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, Agent at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such LenderBank, the Federal Funds Rate. If such Lender Bank shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such LenderBank's A Advance as part of such A Borrowing for purposes of this Agreement.
(ef) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
(g) The Borrower may on any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion, Convert all A Advances of one Type comprising the same A Borrowing into A Advances of another Type or continue such A Advances as the same Type for a new Interest Period; provided, however, that:
(i) the Conversion of any Eurodollar Rate Advances into Base Rate Advances, or the continuation of any Eurodollar Rate Advances for an additional Interest Period, shall be made on, and only on, the last day of the Interest Period then in effect for such Eurodollar Rate Advances; and
(ii) if, on the date of any proposed Conversion, an Event of Default shall have occurred and is then continuing, each Eurodollar Rate Advance that would otherwise be Converted or continued on such date shall Convert into a Base Rate Advance on such date. Each such notice of a Conversion (a "Notice of Conversion") shall be substantially in the form of Exhibit I hereto and shall, within the restrictions specified above, specify the date of such Conversion, the A Advances to be Converted, and the duration of the new Interest Period for each such A Advance. If the Borrower shall fail to select the duration of any new Interest Period by the time therefor required above in respect of the A Advances comprising any A Borrowing, such A Advances shall, subject to the terms and conditions set forth in this Section 2.02(g), automatically Convert on the last day of the then current Interest Period into A Advances of the same Type and having an Interest Period of one month, and the Agent will so notify the Borrower and the Banks.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day (on the first Business Day in the case of a Base Rate Advance) prior to the date of a the proposed A Borrowing consisting of Eurodollar Rate AdvancesBorrowing, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such Borrower's notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, substantially in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date Drawdown Date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar LIBOR Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate The total amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowing. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made available by each Lender shall never exceed the Commitment of such Lender, as adjusted by such Lender as part of Lender's B Reduction, and shall be proportionate always to such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions Lender's Percentage Interest set forth in Article IIIthe signature pages hereof or, if applicable, in the Register.
(dc) Unless the Agent shall have received written notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(d) The Borrower shall repay the principal amount of each A Advance made by each Lender in accordance with the Series A Note payable to such Lender, provided that the aggregate principal amount of any A Advance outstanding on the Termination Date shall be paid on the Termination Date, except as otherwise provided with respect to any such outstanding principal amounts converted, pursuant to Section 2.12 hereof, to Term Loans, which shall be repaid as provided in the Term Notes on the Term Loan Maturity Date.
(e) The failure Borrower may on any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Section 2.05, and so long as no Default or Event of Default has occurred and is continuing, Convert all A Advances of one Type comprising the same A Borrowing into Advances of another Type; provided, however, that any Conversion of any Lender to make the A Advance to LIBOR Rate Advances into Advances of another Type shall be made by it as part on, and only on, the last day of any A Borrowing shall not relieve any other Lender an Interest Period for such LIBOR Rate Advances. Each such notice of its obligationa Conversion shall, if anywithin the restrictions specified above, hereunder to make its A Advance on specify (i) the date of such A BorrowingConversion, but no Lender shall be responsible for the failure of any other Lender to make (ii) the A Advance Advances to be made by Converted, and (iii) if such other Lender on Conversion is into LIBOR Rate Advances, the date duration of any the Interest Period for each such A BorrowingAdvance.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a the proposed A Borrowing (in the case of an A Borrowing consisting of Eurodollar Rate Advances) or given not later than 11:00 A.M. (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing consisting of Base Rate Advances), by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not only select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the in an aggregate amount of such A Borrowing $10,000,000 or such Conversion or continuance is less than an integral multiple of $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change 1,000,000 in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advanceexcess thereof.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill, on or before the date specified in such Notice of A Borrowing, the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason Borrowing. The Borrower shall pay amounts owing to any Lender pursuant to this Section 2.02(c) within 30 days after receipt from such Lender of a certificate setting forth in reasonable detail the calculation of the termination of hedging or other similar arrangementsamount such Lender is entitled to claim under this Section 2.02(c) (which certificate shall be conclusive and binding for all purposes, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIabsent manifest error).
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.2.02
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given by a Borrower to the Administrative Agent not later than (x) 10:00 A.M. 11:00 a.m. (New York City time) on the date day of a the proposed A Borrowing consisting in the case of a Base Rate Advances Borrowing and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to in the Agent, which case of a Eurodollar Rate Borrowing. The Administrative Agent thereupon shall give to each Lender Bank prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-l hereto, specifying therein the requested (i) date of such A BorrowingXxrrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one Every Notice of A Borrowing on any Business Daygiven by a Subsidiary Borrower must be countersigned by an authorized representative of TBC, in order to evidence the consent of TBC, in its sole discretion, to that proposed A Borrowing. Each Lender Bank shall, before 1:00 P.M. p.m. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.02the Administrative Agent's Account, in same day funds, such LenderBank's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III5, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A Borrowingbinding. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed such A Borrowing shall indemnify each Lender Bank against any loss, cost or expense incurred by such Lender Bank on account of any failure to fulfill on or before the date specified for such A Borrowing in such Notice of A Borrowing the applicable conditions set forth in Article 5, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender Bank to fund the A Advance to be made by such Lender Bank as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(dc) Unless the Administrative Agent shall have received notice from a Lender Bank prior to 1:00 p.m. (New York City time) on the date day of any A Borrowing that such Lender Bank will not make available to the Administrative Agent such LenderBank's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender Bank has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender Bank shall not have so made such ratable portion available to the Administrative Agent, such Lender Bank and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such a Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such LenderBank, the Federal Funds Rate. If such Lender Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such LenderBank's A Advance as part of such A Borrowing for purposes of this Agreement.
(ed) The failure of any Lender Bank to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the A Advance to be made by such other Lender Bank on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the (i) third Business Day prior to the date of a the proposed A Borrowing, if such proposed A Borrowing consisting consists of Eurodollar Rate Advances or Adjusted CD Rate Advances and (ii) Business Day prior to the date of such proposed A Borrowing, if such proposed Borrowing consists of Base Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each A Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex telex, cable or cabletelephone (and if by telephone, confirmed immediately in writing), in substantially the form of Exhibit A-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, Borrowing and (iv) in the case of an A Borrowing comprised of Adjusted CD Rate Advances or Eurodollar Rate Advances, the initial Interest Period for each such A Advance. Each A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. 12:00 noon (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.0210.02, in same day funds, such A Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article IIIV, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Adjusted CD Rate Advances or Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before 1,000,000 multiplied by the date number of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate AdvanceLenders.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Adjusted CD Rate Advances or Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each A Lender against any loss, cost or expense incurred by such A Lender by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article IIIV, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such A Lender to fund the A Advance to be made by such A Lender as part of such A Borrowing when such A Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a an A Lender prior to the date of any A Borrowing that such A Lender will not make available to the Agent such A Lender's ratable portion of such A Borrowing, the Agent may assume that such A Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such A Lender shall not have so made such ratable portion available to the Agent, such A Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, Agent at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such A Lender, the Federal Funds Rate. If such A Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such A Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any A Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other A Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no A Lender shall be responsible for the failure of any other A Lender to make the A Advance to be made by such other A Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Gap Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) (i) on the date same Business Day as the proposed A Borrowing in the case of a proposed an A Borrowing consisting of Base Rate Advances and or (y) 12:00 noon (New York City timeii) on the third Business Day prior to the date of a the proposed A Borrowing in the case of an A Borrowing consisting of Eurodollar Rate LIBOR Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "“Notice of A Borrowing"”) shall be by telecopier, or by telex or cable, cable (confirmed immediately in writing), in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate LIBOR Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ’s ratable portion of such A Borrowing. After the Agent's ’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's ’s aforesaid addressaddress not later than 2:00 P.M. (New York City time) on such date.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a , the Borrower may not select Eurodollar Rate LIBOR Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance20,000,000.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate LIBOR Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender (i) by 12:00 Noon (New York City time) on the date of any A Borrowing in the case of any A Borrowing consisting of Base Rate Advances or (ii) by 12:00 Noon (New York City time) on the Business Day prior to the date of any A Borrowing consisting of LIBOR Advances that such Lender will not make available to the Agent such Lender's ’s ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available by the Agent to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's ’s A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Supervalu Inc)
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on (x) the date of a proposed A Borrowing consisting comprised of Alternate Base Rate Advances Advances, and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting comprised of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing to the Agent, which shall give to each Lender prompt notice thereof (and in any event not later than the same day) by telecopier, telex telecopier or cabletelex. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex telecopier or cabletelex, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to Advance in the conditions herein provided, borrow more than one A Borrowing on any Business Daycase of Eurodollar Rate Advances. Each Lender shall, before 1:00 P.M. 12:00 Noon (New York City time) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Agent at its address referred to in Section 9.028.02(b), in same day funds, such Lender's ratable portion of such A Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower requesting the proposed A Borrowing at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(dc) Unless the Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such A Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and such the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement, and the interest payable thereon shall be allocated such that the Agent shall receive (from a combination of the sum, if any, paid to the Agent by such Lender pursuant to clause (ii) of the preceding sentence and any interest payment made by the Borrower) an amount equal to interest on such A Advance at the interest rate applicable thereto from the date the corresponding amount was made available by the Agent to the Borrower as contemplated by this Section 2.02(c) to and including the date such amount is repaid to the Agent by such Lender, and such Lender shall receive the balance of the interest payments made by the Borrower with respect to such Advance in accordance with the provisions of this Agreement.
(ed) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City timei) on the third Business Day prior to the date of a the proposed A Borrowing, in the case of an A Borrowing consisting comprised of Eurodollar Rate Advances, and (ii) on the date of the proposed A Borrowing, in the case of an A Borrowing comprised of Base Rate Advances, in each case by the Borrower requesting the proposed A Borrowing to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex or cable, confirmed immediately in writing, in substantially the form of Exhibit A-1 2.02
(a) hereto, specifying therein the requested (iA) date of such A Borrowing, (iiB) Type of A Advances comprising such A Borrowing, (iiiC) aggregate amount of such A Borrowing, Borrowing and (ivD) in the case of an A Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such A Advance. A Borrower may, subject to the conditions herein provided, borrow more than one A Borrowing on any Business Day. Each Lender shall, before 1:00 P.M. (New York City timex) in the case of a Borrowing consisting of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case 12:00 noon on the date of such A Borrowing, in the case of an A Borrowing comprised of Eurodollar Rate Advances, and (y) 1:00 p.m. on the date of such A Borrowing, in the case of an A Borrowing comprised of Base Rate Advances, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will promptly make such funds available to the Borrower requesting the proposed A Borrowing at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) a Borrower may not select Eurodollar Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating to Eurodollar Rate Advances outstanding at any time;
(iii) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingBorrower. In the case of any A Borrowing which the related Notice of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower requesting the proposed A Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(dc) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion A Advance as part of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion A Advance available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting the proposed A Borrowing on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion A Advance available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount amount, together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the time to A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(ed) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
Appears in 1 contract
Making the A Advances. (a) Each A Borrowing shall be made on notice, given not later than (x) 10:00 11:00 A.M. (New York City time) on the date of a proposed A Borrowing consisting of Base Rate Advances and (y) 12:00 noon (New York City time) on the third Business Day prior to the date of a proposed A Borrowing consisting of Eurodollar Rate Advances, by the Borrower requesting the proposed A Borrowing (in the case of an A Borrowing to consist of Eurocurrency Rate Advances), or by 11:00 A.M. (New York City time) on the day of the proposed A Borrowing (in the case of an A Borrowing to consist of Base Rate Advances), by the Company (on its own behalf and on behalf of the other Borrowers) to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex telecopier or cableby telex. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, telex telecopier --------------------- or cableby telex, confirmed immediately in writing, in substantially the form of Exhibit A-1 B-1 hereto, specifying therein the requested (i) the date of such A Borrowing, (ii) the Type of A Advances comprising such A Borrowing, (iii) the aggregate amount of such A BorrowingBorrowing and the Currency thereof (except that Base Rate Advances must be denominated in Dollars), and (iv) in the case of an A Borrowing comprised consisting of Eurodollar Eurocurrency Rate Advances, the initial Interest Period for each such A Advance. Advance and (v) the name of the Borrower of such A Borrower may, subject to Advance (which shall be the conditions herein provided, borrow more than one A Borrowing on any Business DayCompany or a Designated Borrower). Each Lender shallshall on the date of such A Borrowing, before 11:00 A.M. (New York City time), in the case of an A Borrowing to consist of Eurocurrency Rate Advances, and before 1:00 P.M. (New York City time) ), in the case of a an A Borrowing consisting to consist of Base Rate Advances and before 11:00 A.M. (New York City time) in the case of a Borrowing consisting of Eurodollar Rate Advances, in each case on the date of such A Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 9.028.02, in the relevant Currency and in same day funds, such Lender's ratable portion of such A Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower requesting the proposed A Borrowing Company at the Administrative 364-DAY CREDIT AGREEMENT Agent's aforesaid addressaddress (or, in the case of an A Borrowing by a Designated Borrower, the Administrative Agent will make such funds available to the relevant Borrower in such manner as the Administrative Agent and the Company may agree).
(b) Anything in subsection (a) above to the contrary notwithstanding,
notwithstanding (i1) a no Borrower may not select Eurodollar Eurocurrency Rate Advances for any A Borrowing or with respect to the Conversion or continuance of any A Borrowing if the aggregate amount obligation of such A Borrowing or such Conversion or continuance is less than $5,000,000;
(ii) there shall be no more than five Interest Periods relating the Lenders to Eurodollar make Eurocurrency Rate Advances outstanding at any time;
shall then be suspended pursuant to Section 2.08 or 2.12 (iiiexcept as otherwise provided in Section 2.12(b)(ii)) if any Lender shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, the Commitment of such Lender to make Eurodollar Rate Advances or to Convert all or any portion of and (2) Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that such Lender has determined that the circumstances causing such suspension no longer exist and such Lender's then outstanding Eurodollar Rate Advances, if any, shall be Base Rate Advances; to the extent that such affected Eurodollar Rate Advances become Base Rate Advances, all payments of principal that would have been otherwise applied to such Eurodollar Rate Advances shall be applied instead to such Lender's Base Rate Advances; provided that if Majority Lenders are subject to the same illegality or assertion of illegality, then the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing or to Convert all or any portion of Base Rate Advances shall forthwith be suspended until the Agent shall notify the Borrowers that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be a Base Rate Advance;
(iv) if fewer than two Reference Banks furnish timely information to the Agent for determining the Adjusted Eurodollar Rate for any Eurodollar Rate Advances comprising any requested A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advance; and
(v) if the Majority Lenders shall, at least one Business Day before the date of any requested A Borrowing, notify the Agent that the Adjusted Eurodollar Rate for Eurodollar Rate Advances comprising such A Borrowing will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such A Borrowing, the right of a Borrower to select Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing shall be suspended until the Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, and each A Advance comprising such A Borrowing shall be made as a Base Rate Advancedenominated solely in Dollars.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the Borrower requesting the proposed A BorrowingCompany and each Designated Borrower. In the case of any A Borrowing which that the related Notice of A Borrowing specifies is to be comprised consist of Eurodollar Eurocurrency Rate Advances, the Company (and, if a Designated Borrower requesting is the proposed borrower of the related A Borrowing Advances, such Designated Borrower) shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any revocation of such Notice of A Borrowing by the Company (or such Designated Borrower) or any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the A Advance to be made by such Lender as part of such A Borrowing or by reason of the termination of hedging or other similar arrangements, in each case when such A Advance Advance, as a result of such revocation or failure, is not made on such date, including without limitation, as a result of any failure to fulfill on or before the date specified in such Notice of A Borrowing for such A Borrowing the applicable conditions set forth in Article III.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any A Borrowing (in the case of an A Borrowing to consist of Eurocurrency Rate Advances) and not later than 12:00 Noon (New York City time) on the Business Day of the proposed A Borrowing (in the case of an A Borrowing to consist of Base Rate Advances) that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such A Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such A Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower requesting the proposed A Borrowing on such date a corresponding amount; provided that nothing in this subsection (d) shall be construed to relieve any Lender from any obligation hereunder to make available to the Administrative Agent its ratable portion of such A Borrowing in accordance with subsection (a) of this Section 2.02. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and such the relevant Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the relevant Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such Borrower, the interest rate applicable at the such time to the A Advances comprising such A Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's A Advance as part of such A Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it as part of any A Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its A Advance on the date of such A Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the A Advance to be made by such other Lender on the date of any A Borrowing.
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Samples: 364 Day Multicurrency Credit Agreement (Solutia Inc)
