Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender. (b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time. (c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents. (d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received. (e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (CVS Corp), Credit Agreement (CVS Corp)
Swing Line Loans. (a) Subject to the terms and conditions hereof, and relying upon the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid representations and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions warranties set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, this Agreement and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line other Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business DayDocuments, the Swing Line Lender may, in its sole and absolute discretion, give notice make available to the Lenders US Borrower at any time and from time to time during the period from the Closing Date through and including the Business Day immediately preceding the earlier of (i) the date upon which the aggregate unpaid principal balance of the Swing Line Loans become due and payable by demand or (ii) the Expiry Date, by making Swing Line Loans to the US Borrower that such in Dollars in an aggregate principal amount not exceeding at any one time outstanding Fifty Million and 00/100 Dollars ($50,000,000.00) (the "Swing Line Loan shall be funded with a borrowing Facility"); provided, however, that the sum of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all the Swing Line Lender's Swing Line Loans then outstanding, plus (viii) the Aggregate Dollar Equivalent principal amount of all Revolving Credit Exposure at such time and Loans outstanding of all the Banks, plus (viiiii) the aggregate Dollar Equivalent amount of Letters of Credit Outstanding at any one time shall not exceed the aggregate amount of the Commitments at Revolving Credit Facility Commitment as the same may be increased from time to time pursuant to Section 2.21. If not sooner paid, each Swing Line Loan, all unpaid interest thereon and all other sums and costs incurred hereunder with respect to such time.
Swing Line Loan shall be immediately due and payable on the earlier of (ci) Upon each receipt by a Lender of notice thirty (30) Business Days from the Administrative Agentdate such Swing Line Loan was made, such Lender shall purchase unconditionally(ii) demand or (iii) the Expiry Date, irrevocablywithout notice, presentment or demand (unless payable by demand). Within the limits of time and amount set forth in this Section 2.03.1, and severally (and not jointly) from subject to the provisions of this Agreement including, without limitation, the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal Lender's right to the product of its Commitment Percentage and the outstanding balance demand repayment of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and at any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded time with or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or an Event of Default or the compliance by the Default, US Borrower with any of its obligations may borrow, repay and reborrow under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received2.02.1.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 2 contracts
Samples: Loan Agreement (Matthews International Corp), Loan Agreement (Matthews International Corp)
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (2.3.3.1 The entire outstanding principal balance of each a “Swing Line Loan” and, collectivelytogether with all accrued interest thereon, shall be due and payable without notice or demand on the “third (3rd) Business Day after the Business Day on which such Swing Line Loans”) to the Borrower from time to time during the Loan was advanced. If a Swing Line Commitment Period. Swing Line Loans (i) may be repaid Loan is not paid in full when due and reborrowed in accordance with on such due date the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in Borrowing Base Availability exceeds the aggregate outstanding principal balance amount of all Swing Loans, Lenders shall make a Loan to Borrowers under the Line Loans exceeding of Credit (to the extent available under Section 2.1.1 on the date the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is due, the proceeds of which shall be in default of its obligations under this Agreement unless used to repay the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make Each Loan required to be made pursuant to this Section 2.3.3.1 to repay a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on made automatically by Lenders, without a Notice of Borrowing from Borrowers for such Loan. If, however, the day (the “Swing Line Maturity Date”) being the earliest of the last day of Borrowing Base Availability is not sufficient to permit a Loan to be made in an amount sufficient to pay the Swing Line Interest Period applicable theretoLoan in full, each Lender shall be deemed, automatically and without further action by any Lender, to have purchased a participation interest in the Swing Line Loan (or the unpaid portion thereof) as of the due date thereof, as provided (and on the terms and conditions contained in) Article XII.
2.3.3.2 If a Swing Line Loan is not paid in full when initially due pursuant to Section 2.3.3.1, such Swing Line Loan shall thereafter be due on the first to occur of (i) the Maturity Date or (ii) the date on which Borrowing Base Availability next exceeds the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds aggregate outstanding principal amount of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender mayall Loans, in its sole discretion, give notice to the Lenders and the Borrower that which event such outstanding Swing Line Loan shall be funded repaid with a borrowing loan to the extent then available under the Line of Revolving Credit Loans (provided that such notice shall be deemed Credit. Each Loan required to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents2.3.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 2 contracts
Samples: Revolving Credit Loan Agreement (Orleans Homebuilders Inc), Revolving Credit Loan Agreement (Orleans Homebuilders Inc)
Swing Line Loans. (a) Subject to During the terms and conditions hereofRevolving Commitment Period, the Swing Line Lender agrees to shall make revolving credit loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) in Dollars to the Borrower from time on any Business Day; provided that (i) the aggregate principal amount of Swing Line Loans shall not exceed an amount equal to time during $25,000,000 (as such amount may be adjusted in accordance with the provisions hereof, the “Swing Line Committed Amount”), notwithstanding the fact that such Swing Line Loans, when aggregated with the Revolving Commitment Percentage of the Revolving Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Revolving Lender’s Revolving Commitment, (ii) with respect to the Revolving Lenders collectively, the aggregate principal amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed Amount, (iii) the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (iv) the Swing Line Commitment PeriodLender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Borrowing may have, Fronting Exposure. Swing Line Loans (i) shall be Daily Floating Eurodollar Rate Loans, and may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in . Immediately upon the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance making of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line each Revolving Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocablyto, and severally (hereby irrevocably and not jointly) unconditionally agrees to, purchase from the Swing Line Lender a participation interest in the outstanding such Swing Line Loans (including accrued interest thereon) Loan in an amount equal to the product of its such Revolving Lender’s Revolving Commitment Percentage and the outstanding balance of the thereof. No Swing Line Loans Loan shall remain outstanding for longer than five (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents5) Business Days.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Griffin-American Healthcare REIT III, Inc.), Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Swing Line Loans. (a) Subject Notwithstanding any other provision of this Agreement to the terms contrary, in order to administer the Revolving Credit Facility in an efficient manner and conditions hereofto minimize the transfer of funds between the Agent and the Lenders, the Swing Line Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.6, to make loans under this Agreement (each a “available Swing Line Loan” and, collectively, the “Swing Line Loans”) Loans in Dollars to the Borrower from time prior to time during the Termination Date applicable to the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line CommitmentLender. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender pursuant hereto (and shall be in default not unless otherwise approved by the Required Lenders) (i) if to the actual knowledge of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory the Borrower is not in compliance with all the conditions to it the making of Revolving Loans set forth in this Agreement, (ii) if after giving effect to such Swing Line Loan, the Swing Line Outstandings exceed $100,000,000, or (iii) if after giving effect to such Swing Line Loan, the Outstandings exceed the then applicable Total Revolving Credit Commitment. Each Swing Line Loan shall mature, and the principal amount thereof , together with any accrued interest thereon, shall be payable (if not previously prepaid) in full to the Swing Line Lender on the fifth Business Day after such Swing Line Loan is made. The Borrower may, subject to eliminate the conditions set forth in the preceding two sentences, borrow, repay and reborrow under this Section 2.6. Unless notified to the contrary by the Swing Line Lender’s risk , borrowings under the Swing Line shall be made in the minimum amount of $500,000 or, if greater, in amounts which are integral multiples of $500,000, upon written request by telefacsimile transmission, effective upon receipt, by an Authorized Representative of the Borrower made to the Swing Line Lender not later than 2:00 P.M. on the Business Day of the requested borrowing. Each such Borrowing Notice shall specify the amount of the borrowing and the date of borrowing, and shall be in the form of Exhibit D-2 hereto, with appropriate insertions. Unless notified to the contrary by the Swing Line Lender, each repayment of a Swing Line Loan shall be in an amount which is an integral multiple of $500,000 or the aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the account of the Swing Line Lender, except to the extent that Lenders have funded their respective Participations in such Swing Line Loans. Swing Line Loans shall bear interest solely at the Swing Line Rate. All accrued and unpaid interest on Swing Line Loans shall be payable, on the dates and in the manner provided in Section 3.3 with respect to interest on Base Rate Loans.
(c) The Borrower, at its option and subject to the terms hereof, may request an Advance pursuant to Section 2.1 in an amount sufficient to repay Swing Line Outstandings on any date and the Agent shall provide from the proceeds of such defaulting Advance to the Swing Line Lender the amount necessary to repay such Swing Line Outstandings (which the Swing Line Lender shall then apply to such repayment) and credit any balance of the Advance in immediately available funds in the manner directed by the Borrower pursuant to Section 2.1(c)(ii)(A). The proceeds of such Advances shall be paid to the Swing Line Lender for application to the Swing Line Outstandings and the Lenders shall then be deemed to have made Loans in the amount of such Advances. The Swing Line shall continue in effect until the Termination Date applicable to the Swing Line Lender, at which time all Swing Line Outstandings and accrued interest thereon shall be due and payable in full.
(i) Upon the making of a Swing Line Loan in accordance with paragraph (a) above, each Lender shall be deemed to have purchased from the Swing Line Lender a Participation therein in an amount equal to that Lender’s participation Applicable Commitment Percentage of such Swing Line Loan. Upon demand made by the Swing Line Lender, each Lender shall, according to its Applicable Commitment Percentage of such Swing Line Loan, promptly provide to the Swing Line Lender its purchase price therefor in an amount equal to its Participation therein. Any Advance made by a Lender pursuant to demand of the Swing Line Lender of the purchase price of its Participation shall when made be deemed to be the funding by each Lender of the purchase price of its Participation in such Swing Line Loan. Each Lender shall make an amount equal to its Applicable Commitment Percentage of the amount of such Swing Line Loan available to the Agent in Same Day Funds for the account of the Swing Line Lender at the [Agent’s Office] for Dollar-denominated payments not later than 1:00 P.M. on the day specified by the Swing Line Lender (if such notice shall have been received by the Lenders not later than 11:00 A.M. on such day) or not later than 1:00 P.M. on the next succeeding Business Day (if such notice shall have been received by the Lenders later than 11:00 A.M.), whereupon each Lender that so makes funds available shall have funded the purchase price of its Participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if Agent shall remit the Administrative Agent, or any Lender by notice funds so received to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether If any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal fails to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made any amount required to be paid by each such Lender pursuant to the foregoing provisions of this Section 2.6(d) by the time specified in Section 2.6(d)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately preceding sentence available to the Swing Line Lender promptly upon receipt thereof at a rate per annum equal to the applicable Overnight Rate from time to time in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and effect, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender from in connection with the foregoing. If such Lender pays such amount (with interest and against any and all losses, liabilities (including liabilities for penaltiesfees as aforesaid), actionsthe amount so paid shall constitute such Lender’s funded participation in the relevant Swing Line Loan. A certificate of the Swing Line Lender submitted to any Lender (through the Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iii) Each Lender’s obligation to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.6(d) shall be absolute and unconditional and shall not be affected by any circumstance, suitsincluding (A) any setoff, judgmentscounterclaim, demandsrecoupment, costs and expenses resulting from any failure on the part of defense or other right which such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or may have against the Swing Line Lender, as the case may beBorrower or any other Person for any reason whatsoever, resulting from (B) the gross negligence occurrence or willful misconduct continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the Administrative Agent foregoing. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
(iv) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Commitment Percentage thereof in the same funds as those received by the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of .
(v) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender pursuant to any Debtor Relief Law or otherwise (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Commitment Percentage thereof on demand of the Agent, plus interest thereon from the date of such demand to the date such amount was due until paid in full, on the unpaid portion thereofis returned, at a rate of interest per annum, whether before or after judgment, annum equal to (i) from the date applicable Overnight Rate. The Agent will make such amount was due until demand upon the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by request of the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account obligations of the Swing Line Lender for any Lenders under this clause shall survive the payment in connection with Swing Line Loans full of the Obligations and such payment relates to an amount previously paid by a Lender pursuant to the termination of this Section, the Administrative Agent will promptly remit such payment to such LenderAgreement.
Appears in 2 contracts
Samples: Credit Agreement (V F Corp), Credit Agreement (V F Corp)
Swing Line Loans. (a) Subject For the convenience of the parties and as an integral part of the transactions contemplated by the Loan Documents, Swing Line Lender may make any requested Loan of $250,000 or a greater integral multiple thereof, subject to the those terms and conditions hereofapplicable to Loans set forth in clauses (a), (b), and (c) of the first sentence of Section 5.2, directly to Borrower as a Swing Line Loan without requiring any other Lender to fund its ratable portion thereof unless and until Section 2.2(c) is applicable; provided that: (i) each such Swing Line Loan must occur on a Business Day prior to, and not on or after, the Termination Date; (ii) the aggregate Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during Principal Debt outstanding on any date of determination shall not exceed the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed then in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and effect; (iii) on any date of determination, the Commitment Usage shall not, immediately after giving effect thereto, result in never exceed the aggregate outstanding principal balance amount of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make Commitments of Lenders; (iv) on any Swing Line Loan at a time when any Lender shall be in default date of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line determination, each Lender’s risk with respect to Commitment Percentage of the Commitment Usage (including any such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will Loans and any LC Exposure) shall not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to exceed such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and Lender’s Commitment; (v) such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall not be due and payable on the day (the “used to refinance any outstanding Swing Line Maturity Date”Loan; (vi) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each each Swing Line Loan shall bear interest at a rate per annum equal to the Negotiated Rate applicable thereto. The lesser of (x) the Money Market Rate, and (y) the Maximum Rate; provided further that at any time after Lenders are required to fund their participations in any Swing Line Lender Loan pursuant to Section 2.2(c), such Loan shall disburse bear interest at the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
Post-Default Rate; and (bvii) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding no additional Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon made at any time after any Lender has refused, notwithstanding the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance requirements of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agentto fund its participation in any Swing Line Loan as provided in such Section, and until such Lender funding shall promptly make available to the Administrative Agent for the account of occur or until the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedLoan has been repaid.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Allied Capital Corp), Credit Agreement (Allied Capital Corp)
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to Bank may in its discretion make swing line loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Commitment Period in an aggregate outstanding principal amount up to the amount of the Swing Line Commitment Period. as requested by the Borrower and agreed to by the Swing Line Loans Bank; provided, that, no Swing Line Loan shall be made if, after giving effect to the making of such Swing Line Loan and the simultaneous application of the proceeds thereof (i) any Bank’s Exposure at such time shall exceed such Bank’s Commitment at such time or (ii) the Total Exposure at such time shall exceed the Total Commitment at such time. Within the foregoing limits, the Borrower may be repaid during the Commitment Period borrow, repay and reborrowed reborrow under the Swing Line Commitment, subject to and in accordance with the provisions terms and limitations hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due in an original principal amount of $100,000 or in integral multiples of $50,000 in excess thereof. The interest rate for a Swing Line Loan shall be such rate that is mutually agreed to by the Borrower and payable the Swing Line Bank in writing at the time such Swing Line Loan is made) or, if the Cash Management Agreements (as defined in clause (g) below) are in effect, at the Eurodollar based rate plus the Applicable Margin (determined in accordance with the Cash Management Agreements). Interest on the day Swing Line Loans shall be paid in accordance with Section 2.6 hereof. All Swing Line Loans shall be repaid on the Termination Date and as otherwise provided in this Section 2.2.
(b) The Borrower may request a Swing Line Loan to be made on any Business Day. Each request for a Swing Line Loan shall be in the form of a Borrowing Request (or a request by telephone immediately confirmed in writing, it being understood that the Swing Line Bank may rely on the authority of any individual making such telephonic request without the necessity of receipt of such written confirmation) and received by the Agent not later than 1:00 p.m. (Philadelphia time) on the Business Day such Swing Line Loan is to be made (or such later time as the Swing Line Bank shall agree), specifying in each case (i) the amount to be borrowed and (ii) the requested borrowing date. The request for such Swing Line Loan shall be irrevocable. Provided that all applicable conditions precedent contained herein have been satisfied, the Swing Line Bank shall, not later than 4:00 p.m., Philadelphia time, on the date specified in the Borrower’s request for such Swing Line Loan, make such Swing Line Loan by crediting the Borrower’s deposit account with the Swing Line Bank.
(c) The obligation of the Borrower to repay the Swing Line Loans shall be evidenced by a promissory note of the Borrower dated the date hereof, payable to the order of the Swing Line Bank in the principal amount of the Swing Line Commitment and substantially in the form of Exhibit C (as amended, supplemented or otherwise modified from time to time, the “Swing Line Maturity DateNote”).
(d) being The Borrower shall have the earliest of the last day of right at any time and from time to time to prepay the Swing Line Interest Period applicable theretoLoans, in whole or in part, without premium or penalty (but in any event subject to Section 2.13, to the extent applicable), upon prior written, facsimile or telephonic notice to the Swing Line Bank given no later than 12:00 p.m. (noon), Philadelphia time, on the date of any proposed prepayment (each such date, a “Swing Line Prepayment 26 Date”). Each notice of prepayment shall specify the amount to be prepaid (which, except in the case of payment in full, shall be in the principal amount of $100,000 or in integral multiples of $50,000 in excess thereof), shall be irrevocable and shall commit the Borrower to prepay such amount on such date, with accrued interest thereon and any amounts owed under Section 2.13 hereof. Unless the Borrower shall have notified the Agent prior to 12:00 p.m. (noon), Philadelphia time, that the Borrower intends to prepay such Swing Line Loan with funds other than the proceeds of a Revolving Credit Loan or shall have requested in accordance with subsection 2.1(d) hereof the making of a Eurodollar Loan to make such prepayment, the date Borrower shall be deemed to have given notice to the Agent requesting the Banks to make Revolving Credit Loans which shall earn interest at the Base Rate in effect on such Swing Line Prepayment Date in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, and subject to satisfaction or waiver of the conditions specified in Section 4.2, the Banks shall, on such Swing Line Prepayment Date, make Revolving Credit Loans, which shall earn interest at the Base Rate, in an aggregate amount equal to the amount of such Swing Line Loan plus accrued interest thereon, the proceeds of which shall be applied directly by the Agent to repay the Swing Line Bank for such Swing Line Loan plus accrued interest thereon; provided, that if for any reason the proceeds of such Revolving Credit Loans are not received by the Swing Line Bank on such Swing Line Prepayment Date in an aggregate amount equal to the amount of such Swing Line Loans being prepaid plus accrued interest, the Borrower shall reimburse the Swing Line Bank on the Business Day immediately following such Swing Line Prepayment Date, in same day funds, in an amount equal to the excess of the amount of such Swing Line Loan and accrued interest thereon over the aggregate amount of such Revolving Credit Loans, if any, received.
(e) In the event the Commitments are terminated in accordance with the terms hereof, the Swing Line Commitment shall also be terminated automatically. In the event the Borrower reduces the Total Commitment to less than the Swing Line Commitment, the Swing Line Commitment shall immediately be reduced to an amount equal to the Total Commitment. In the event the Borrower reduces the Total Commitment to less than the outstanding principal amount of the Swing Line Loans, the Borrower shall immediately repay the amount by which the outstanding Swing Line Loans exceeds the Swing Line Commitment as so reduced plus accrued interest thereon and any amounts owed under Section 2.13 hereof.
(f) In the event that the Borrower shall fail to repay the Swing Line Bank (i) the outstanding Swing Line Loans together with all accrued interest thereon on the Termination Date, (ii) the amount of any Swing Line Loan due on any Swing Line Prepayment Date, or (iii) any amounts required under subsection 2.2(e), the Agent shall promptly notify each Bank of the unpaid amount of such Swing Line Loan (including accrued interest thereon) and of such Bank’s respective participation therein in an amount equal to such Bank’s Commitment Percentage of such amount. Each Bank shall make available to the Agent for payment to the Swing Line Bank an amount equal to its respective participation therein (including, without limitation, its pro rata share of accrued but unpaid interest thereon, provided that the interest rate payable by the Banks shall not exceed the Base Rate), in same day funds, at the office of the Agent specified in such notice. If such notice is delivered by the Agent by 11:00 a.m., Philadelphia time, each Bank shall make funds available to the Agent on that Business Day. If such notice is delivered after 11:00 a.m., Philadelphia time, each Bank shall make funds available to the Agent on the next Business Day. In the event that any Bank fails to make available to the Agent the amount of such Bank’s participation in such unpaid amount as provided herein, the Swing Line Bank shall be entitled to recover such amount on demand from such Bank together with interest thereon at a rate per annum equal to the Federal Funds Effective Rate for each day during the period between the Business Day such payment is due in accordance with the terms of this subsection 2.2(f) and the date on which any Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the Agent its Commitment Percentage of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to make available to the Agent its Commitment Percentage of such unpaid amount on the Business Day such payment is due in accordance with the terms of this subsection 2.2(f). The Agent shall promptly distribute to each Bank which has paid all amounts payable by it under this subsection 2.2(f) with respect to the unpaid amount of any Swing Line Loan, such Bank’s Commitment Percentage of all payments received by the Agent from the Borrower in repayment of such Swing Line Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has paid all amounts payable by it under this Section 2.2(f) shall have been voluntarily terminated a direct right to repayment of such amounts from the Borrower subject to the procedures for repaying Banks set forth in this Section 2.2(f) and the provisions of Section 9.8.
(g) In addition to making Swing Line Loans pursuant to the foregoing provisions of this Section 2.2, without the requirement for a specific request from the Borrower pursuant to subsection 2.2(b), the Swing Line Bank may make Swing Line Loans to the Borrower in accordance with the provisions of any agreements between the Borrower and the Swing Line Bank relating to the Borrower’s deposit, sweep and other accounts at the Swing Line Bank and related arrangements and agreements regarding the management and investment of the Borrower’s cash assets as in effect from time to time (the “Cash Management Agreements”) to the extent of the daily aggregate net negative balance in the Borrower’s accounts which are subject to the provisions of the Cash Management Agreements. Swing Line Loans made pursuant to this subsection 2.2(g) in accordance with the provisions of the Cash Management Agreements shall (i) be subject to the limitations as to aggregate amount set forth in subsection 2.2(a), (ii) not be subject to the limitations as to individual amount set forth in subsection 2.2(a), (iii) be payable by the Borrower, both as to principal and interest, at the times set forth in the Cash Management Agreements (but in no event later than the Termination Date), (iv) not be made at any time after the Swing Line Bank has notice of the occurrence and during the continuance of a Default or Event of Default, (v) if not repaid by the Borrower in accordance with Section 2.6the provisions of the Cash Management Agreements, be subject to each Bank’s obligation to purchase participating interests therein pursuant to subsection 2.2(f), and (vi) except as provided in the date on which the Loans shall become due and payable pursuant foregoing subsections (i) through (v), be subject to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account all of the Borrower maintained terms and conditions of this Section 2.2.
(h) Each Bank shall, ratably in accordance with its Commitment Percentage, indemnify the Swing Line Lender.
Bank, its affiliates and their respective directors, officers, agents and employees (b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and extent not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid reimbursed by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard limiting its obligation to the occurrence of do so) against any Default cost, expense (including reasonable counsel fees and expenses), claim, demand, action, loss or Event of Default or the compliance by the Borrower with liability (except any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice foregoing that results from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the indemnitees’ gross negligence or willful misconduct of the Administrative Agent misconduct) that such indemnitees may suffer or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment incur in connection with Swing Line Loans and this Section 2.2 or any action taken or omitted by such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lenderindemnitees hereunder.
Appears in 1 contract
Samples: Credit Agreement (Aqua America Inc)
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated from time to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless from the Swing Line Lender has entered into arrangements satisfactory to it and Effective Date through the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day day prior to the Borrowing Termination Date with respect make Swing Line Loans in Dollars to Borrower in such amounts as Borrower may request, PROVIDED that (i) after giving effect to such Swing Line Loan, shall have determined that (A) the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each aggregate Swing Line Loan Outstandings shall be due not exceed $15,000,000 and payable on (B) the day (the “Swing Line Maturity Date”) being the earliest aggregate principal outstanding amount of the last day of the Swing Line Interest Period applicable theretoall Committed Loans, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, Money Market Loans and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account plus the Letter of Credit Liabilities shall not exceed the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunderaggregate Commitments, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) without the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount consent of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative AgentLenders, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the no Swing Line Lender a participation in Loan may be made during the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence continuation of any Default or Event of Default and (iii) the Swing Line Lender has not given at least twenty-four hours prior notice to Borrower that availability under the Swing Line is suspended or terminated. Borrower may borrow, repay and reborrow under this Section. Unless notified to the compliance contrary by the Borrower with any of its obligations Swing Line Lender, borrowings under the Loan Documents.
(d) In furtherance Swing Line may be made in amounts which are integral multiples of Section 2.2(c), $1,000,000 upon each receipt telephonic request by a Lender Responsible Official of notice from the Administrative Agent, such Lender shall promptly make available Borrower made to the Administrative Agent not later than 1:00 P.M. (California local time), on the Domestic Business Day of the requested Swing Line Loan (which telephonic request shall be promptly confirmed in writing by telecopier). Promptly after receipt of such a request for a Swing Line Loan, the Administrative Agent shall provide telephonic verification to the Swing Line Lender that the requested Swing Line Loan is in conformity with this Section. Unless the Swing Line Lender otherwise agrees, each repayment of a Swing Line Loan shall be in an amount which is an integral multiple of $1,000,000. If Borrower instructs the Swing Line Lender to debit its demand deposit account at the Swing Line Lender in the amount of any payment with respect to a Swing Line Loan, or the Swing Line Lender otherwise receives repayment, after 3:00 p.m. (California local time), on a Domestic Business Day, such payment shall be deemed received on the next Domestic Business Day. The Swing Line Lender shall promptly notify the Administrative Agent of the Swing Loan Outstandings each time there is a change therein. The Swing Line Lender shall be responsible for submitting invoices to Borrower for such interest. The interest payable on Swing Line Loans shall be solely for the account of the Swing Line Lender its unless and until the Banks fund their participations therein pursuant to clause (d) of this Section. The Swing Line Participation Amount at Loans shall be payable on demand made by the office Swing Line Lender and in any event on the Termination Date. Upon the making of a Swing Line Loan, each Lender shall be deemed to have purchased from the Swing Line Lender a participation therein in an amount equal to that Lender's percentage of the Administrative Agent specified in Section 11.2, in lawful money aggregate Commitments TIMES the amount of the United States and in immediately available fundsSwing Line Loan. The Administrative Agent shall deliver the payments Upon demand made by the Swing Line Lender, each Lender pursuant shall, according to the immediately preceding sentence such percentage, promptly provide to the Swing Line Lender promptly upon receipt thereof its purchase price therefor in like funds as receivedan amount equal to its participation therein. Each The obligation of each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and so provide its purchase price to the Swing Line Lender from shall be absolute and against any unconditional and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered shall not be affected by the Administrative Agent occurrence of a Default or Event of Default. Each Lender that has provided to the Swing Line Lender, as Lender the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the purchase price due for its participation in Swing Line LenderLoans shall thereupon acquire a pro rata participation, as the case may be), and such Lender shall pay interest to the Administrative Agent for extent of such payment, in the account claim of the Swing Line Lender from against Borrower for principal and interest and shall share, in accordance with that pro rata participation, in any principal payment made by Borrower with respect to such claim and in any interest payment made by Borrower (but only with respect to periods subsequent to the date such amount was due until Lender paid the Swing Line Lender its purchase price) with respect to such claim. In the event that the Swing Line Outstandings are in fullexcess of $10,000,000 on three consecutive Domestic Business Days then, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to next Domestic Business Day (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments unless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings below $10,000,000), Borrower shall request a Borrowing in an amount sufficient to reduce the Swing Line Outstandings below $10,000,000. In addition, upon receipt thereof any demand for payment of the Swing Line Outstandings by the Swing Line Lender (unless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings to $0), Borrower shall request a Borrowing in like funds an amount sufficient to repay all Swing Line Outstandings (and, for this purpose, the limitations as received.
(e) Whenever to the minimum amounts of Base Rate Borrowings set forth in Section 2.01 shall not apply). In each case, the Administrative Agent is reimbursed shall automatically provide the responsive Loans made by each Lender to the Swing Line Lender (which the Swing Line Lender shall then apply to the Swing Line Outstandings). In the event that Borrower fails to request a Borrowing within the time specified by Section 2.02 on any such date, the Administrative Agent may, but shall not be required to, without notice to or the consent of Borrower, cause Loans to be made by the Borrower for Lenders under their Commitments in amounts which are sufficient to reduce the account Swing Line Outstandings as required above. The conditions precedent set forth in Section 3.01 shall not apply to Loans to be made by the Lenders pursuant to the three preceding sentences. The proceeds of such Loans shall be paid directly to the Swing Line Lender for any payment in connection with application to the Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderOutstandings.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans shall bear interest at a rate per annum equal at all times to the Alternate Base Rate then in effect, plus the Applicable Margin for Revolving Credit Advances that are Alternate Base Rate Advances.
(k) In Section 2.22(a)(iv) of the Credit Agreement, the following phrase is hereby inserted at the beginning of the last sentence: Subject to Section 8.16,
(l) In Section 2.25(b)(i) of the Credit Agreement, the following phrase is hereby inserted at the beginning of such clause (i) may be repaid and reborrowed in accordance with the provisions hereof): Subject to Section 2.25(b)(ii), (iim) shall notIn Section 2.25(b)(ii)(B) of the Credit Agreement, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding second parenthetical, the Aggregate Commitment Amount, and (iii) shall not, following phrase is hereby inserted immediately after giving effect thereto, result in following the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall words “need not be obligated true and correct on any”: Increased Amount Date or any
(n) The last sentence in Section 2.25(b) of the Credit Agreement is hereby amended in its entirety to read as follows: On or after any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, but within the applicable availability period and subject to the foregoing terms and conditions, each Incremental Term Loan Lender with an Incremental Term Loan Commitment shall make any Swing Line an Incremental Term Loan at Advance to the applicable Borrower in an amount equal to its Incremental Term Loan Commitment and, if then not already a time when any Lender, shall become a Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk hereunder with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Incremental Term Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender Commitment and the Borrower no later than one Domestic Business Day prior to Incremental Term Loan Advance made pursuant thereto.
(o) In Sections 3.02(a) and (b) of the Borrowing Date Credit Agreement, the following phrase is hereby inserted at the beginning of each such section: “Except as otherwise provided in any Incremental Term Loan Amendment with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as a Borrowing of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day Incremental Term Loans,”
(the “Swing Line Maturity Date”p) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the The following new clause (t) is hereby inserted immediately following Section 4.01(s): No Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to is an account of the Borrower maintained with the Swing Line LenderEEA Financial Institution.
(bq) On any Domestic Business DayIn Section 5.01(k)(iii) of the Credit Agreement, the Swing Line Lender may, in its sole discretion, give notice to words “together with” are hereby deleted and replaced with the Lenders and following phrase: on the Borrower earlier of (x) the date that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon is five Business Days after the occurrence of a Default or an Event of Default financial statements required under Sections 9.1(h), clause (i) or (j))ii) above, in which case a borrowing of Revolving Credit Loans made as ABR Advances applicable, are filed with the SEC and (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing y)(A) in the amount and in case of the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: financial statements required under clause (i) whether above, 50 days after the amount end of such Mandatory Borrowing complies with Fiscal Quarter and (B) in the minimum amount for Loans otherwise case of the financial statements required hereunder, under clause (ii) whether any condition specified in Section 6 is then unsatisfiedabove, (iii) whether a Default or an Event of Default then exists, (iv) 90 days after the Borrowing Date end of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.fiscal year,
(cr) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this The following new Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of 8.16 is hereby inserted immediately following Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.8.15:
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereofset forth in this Agreement, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, Loans until the “Swing Line Loans”) to the Borrower Revolving Commitment Termination Date as Borrowers may from time to time during request; provided, however, that the aggregate outstanding principal amount of Swing Line Loans shall not exceed the Swing Line Commitment Periodat any time; provided further that in no event shall the Outstanding Obligations at any time exceed the lesser of (x) the Combined Commitments then in effect and (y) an amount equal to 300% of the Free Corporate Cash Flow for the four fiscal quarter period most recently ended on or before such time of determination. Swing Line Loans (i) may be repaid shall constitute Loans for all purposes hereunder. Subject to the foregoing and reborrowed in accordance with the provisions other terms and conditions hereof, (ii) shall notBorrowers may borrow, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, prepay and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all reborrow Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions as set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of herein until the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Revolving Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration Termination Date without premium or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lenderpenalty.
(b) On any Domestic Business Day, the Swing Line Loans made by Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding shall be evidenced by a loan account or records maintained by Swing Line Loan Lender in the Ordinary Course of Business. Upon the request of Swing Line Lender, Swing Line Lender's Swing Line Loans may be evidenced by a Swing Line Note, instead of or in addition to loan accounts. Swing Line Lender may attach schedules to its Swing Line Note and endorse thereon the date, amount and maturity of its Swing Line Loans and payments with respect thereto. Such loan accounts, records or Swing Line Note shall be funded with a borrowing conclusive absent manifest error of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving amount of such noticeSwing Line Loans and payments thereon. The proceeds Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the obligation of each Mandatory Borrowing shall be remitted directly Borrowers to pay any amount owing with respect to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such timeLoans.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Apartment Investment & Management Co)
Swing Line Loans. (a) Subject to During the terms and conditions hereofCommitment Period, the Swing Line Lender agrees to shall make revolving credit loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time on any Business Day; provided that (i) the aggregate principal amount of Swing Line Loans shall not exceed an amount equal to time during fifteen percent (15%) of the Aggregate Revolving Commitments (as such amount may be adjusted in accordance with the provisions hereof, the “Swing Line Committed Amount”), (ii) with respect to the Lenders collectively, the aggregate principal amount of Revolving Obligations shall not exceed the lesser of (x) the Aggregate Revolving Committed Amount and (y) the Adjusted Borrowing Base Amount on such date, (iii) the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (iv) the Swing Line Commitment PeriodLender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Borrowing may have, Fronting Exposure. Swing Line Loans (i) shall be Daily Floating Eurodollar Rate Loans, and may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in . Immediately upon the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance making of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line each Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocablyto, and severally (hereby irrevocably and not jointly) unconditionally agrees to, purchase from the Swing Line Lender a participation interest in the outstanding such Swing Line Loans (including accrued interest thereon) Loan in an amount equal to the product of its such Lender’s Revolving Commitment Percentage and the outstanding balance of the thereof. No Swing Line Loans Loan shall remain outstanding for longer than five (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents5) Business Days.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Griffin-American Healthcare REIT II, Inc.)
Swing Line Loans. (a) Subject The Borrower may prior to the terms and conditions hereofTermination Date, as set forth in this Section, request the Swing Line Lender agrees to make loans under this Agreement make, and the Swing Line Lender prior to the Termination Date will make, Swing Line Loans to the Borrower, in an aggregate principal amount at any one time outstanding, not exceeding $5,000,000, provided that:
(each i) the aggregate principal amount of all Swing Line Loans, together with the aggregate outstanding principal amount of all outstanding Loans, at any one time outstanding shall not at any one time exceed the aggregate amount of the Commitments of all of the Banks at such time; and
(ii) the aggregate principal amount of all Swing Line Loans, together with all outstanding Loans made by the Swing Line Lender, at any one time outstanding shall not exceed the Commitment of the Swing Line Lender.
(b) When the Borrower wishes to request a Swing Line Loan, it shall give the Agent notice substantially in the form of Exhibit M hereto (a “Swing Line Loan” andLoan Request”) so as to be received no later than 11:00 A.M. (Charlotte, collectively, North Carolina time) on or before the “date of the proposed Swing Line Loans”) to Borrowing proposed therein (or such other time and date as the Borrower from time to time during and the Swing Line Commitment Period. Swing Line Loans Lender may agree), specifying:
(i) may the proposed date of such Swing Line Borrowing, which shall be repaid and reborrowed in accordance with a Domestic Business Day (the provisions hereof, “Borrowing Date”); and
(ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance amount of all such Swing Line Loans exceeding Borrowing, which shall be at least $500,000 (or in larger multiples of $100,000) but shall not cause the Swing Line Commitment. limits specified in Section 2.14(a) to be violated.
(c) The Swing Line Lender shall not be obligated to make any the amount of such Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory available to it and the Borrower to eliminate on such date by depositing the Swing Line Lender’s risk with respect to such defaulting Lender’s participation same, in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agentimmediately available funds, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the such Borrower maintained with the Swing Line Lender.
(bd) Subject to the limitations contained in this Agreement, the Borrower may borrow under this Section 2.14, prepay and reborrow under this Section 2.14 at any time before the Termination Date. Each Swing Line Loan included in any Swing Line Borrowing shall mature, and the principal amount thereof shall be due and payable, on the first to occur of: (i) the last day of the Interest Period applicable to such Swing Line Borrowing; or (ii) the Termination Date;
(e) At any time, upon the request of the Swing Line Lender, each Bank other than the Swing Line Lender shall, on the third Domestic Business Day after such request is made, purchase a participating interest in Swing Line Loans in an amount equal to its ratable share (based upon its respective Commitment) of such Swing Line Loans. On any such third Domestic Business Day, each Bank will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation. Whenever, at any time after the Swing Line Lender mayhas received from any such Bank its participating interest in a Swing Line Loan, the Agent receives any payment on account thereof, the Agent will distribute to such Bank its participating interest in such amount (appropriately adjusted, in its sole discretionthe case of interest payments, give notice to reflect the period of time during which such Bank’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Agent is required to be returned, such Bank will return to the Lenders Agent any portion thereof previously distributed by the Agent to it. Each Bank’s obligation to purchase such participating interests shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation: (i) any set-off, counterclaim, recoupment, defense or other right which such Bank or any other Person may have against the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans Lender requesting such purchase or any other Person for any reason whatsoever; (provided that such notice shall be deemed to have been automatically given upon ii) the occurrence or continuance of a Default or an Event of Default under Sections 9.1(hor the termination of the Commitments, provided that no Bank shall be required to purchase a participating interest in any Swing Line Loan first advanced after the Swing Line Lender has actual knowledge of an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Bank, provided that no Bank shall be required to purchase a participating interest in any Swing Line Loan, if the aggregate outstanding principal amount of all Swing Line Loans exceeds $5,000,000; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(f) In furtherance and not in limitation of the rights set forth in Section 2.14(e), (i) or (j))the Swing Line Lender may, at any time, in its sole discretion, by written notice to the Borrower and the Agent, demand repayment of its Swing Line Loans by way of a Syndicated Loan borrowing, in which case the Borrower shall be deemed to have requested a Syndicated Loan borrowing comprised entirely of Revolving Base Rate Loans in the amount of such Swing Line Loans; provided, however, that, in the following circumstances, any such demand shall also be deemed to have been given one Domestic Business Day prior to each of (i) the Termination Date, (ii) the occurrence of any Event of Default described in Section 6.01(g) or Section 6.01(h), (iii) upon acceleration of the Notes or any other amount payable hereunder or under the Credit Loans made as ABR Advances Documents, whether on account of an Event of Default described in Section 6.01(g) or Section 6.01(h) or any other Event of Default, and (iv) the exercise of remedies in accordance with the provisions of Section 6.01 hereof (each such borrowing, Syndicated Loan borrowing made on account of any such deemed request therefor as provided herein being hereinafter referred to as a “Swing Line Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender Bank hereby irrevocably agrees to make a Revolving Credit Loan pursuant to such Syndicated Loans promptly upon any such request or deemed request on account of each Swing Line Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the same such date specified in writing by the Swing Line Lender notwithstanding: notwithstanding (iA) whether the amount of such Swing Line Mandatory Borrowing complies may not comply with the minimum amount for borrowings of Syndicated Loans otherwise required hereunder, (iiB) whether any condition conditions specified in Section 6 is 3.02 are then unsatisfiedsatisfied, (iiiC) whether a Default or an Event of Default then exists, (ivD) failure of any such request or deemed request for Revolving Loans to be made by the time otherwise required in Section 2.02, (E) the Borrowing Date date of such Swing Line Mandatory Borrowing, or (vF) any reduction in the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount Commitments or termination of the Commitments at immediately prior to such timeSwing Line Mandatory Borrowing or contemporaneously therewith.
(cg) Upon each receipt by a Lender of notice from Notwithstanding anything contained in this Agreement to the Administrative Agentcontrary, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation Loan facility contained in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities 2.14 shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in terminate immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to upon: (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and Wachovia’s removal or resignation as Agent; or (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account termination of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderCommitments (whether at maturity or otherwise).
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to Bank may in its discretion make swing line loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Commitment Period in an aggregate outstanding principal amount up to the amount of the Swing Line Commitment Period. as requested by the Borrower and agreed to by the Swing Line Loans Bank; provided, that, no Swing Line Loan shall be made if, after giving effect to the making of such Swing Line Loan and the simultaneous application of the proceeds thereof (i) any Bank’s Exposure at such time shall exceed such Bank’s Commitment at such time or (ii) the Total Exposure at such time shall exceed the Total Commitment at such time. Within the foregoing limits, the Borrower may be repaid during the Commitment Period borrow, repay and reborrowed reborrow under the Swing Line Commitment, subject to and in accordance with the provisions terms and limitations hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due in an original principal amount of $100,000 or in integral multiples of $50,000 in excess thereof. The interest rate for a Swing Line Loan shall be such rate that is mutually agreed to by the Borrower and payable the Swing Line Bank in writing at the time such Swing Line Loan is made) or, if the Cash Management Agreements (as defined in clause (g) below) are in effect, at the Eurodollar based rate plus the Applicable Margin (determined in accordance with the Cash Management Agreements). Interest on the day Swing Line Loans shall be paid in accordance with Section 2.6 hereof. All Swing Line Loans shall be repaid on the Termination Date and as otherwise provided in this Section 2.2.
(b) The Borrower may request a Swing Line Loan to be made on any Business Day. Each request for a Swing Line Loan shall be in the form of a Borrowing Request (or a request by telephone immediately confirmed in writing, it being understood that the Swing Line Bank may rely on the authority of any individual making such telephonic request without the necessity of receipt of such written confirmation) and received by the Agent not later than 1:00 p.m. (Philadelphia time) on the Business Day such Swing Line Loan is to be made (or such later time as the Swing Line Bank shall agree), specifying in each case (i) the amount to be borrowed and (ii) the requested borrowing date. The request for such Swing Line Loan shall be irrevocable. Provided that all applicable conditions precedent contained herein have been satisfied, the Swing Line Bank shall, not later than 4:00 p.m., Philadelphia time, on the date specified in the Borrower’s request for such Swing Line Loan, make such Swing Line Loan by crediting the Borrower’s deposit account with the Swing Line Bank.
(c) The obligation of the Borrower to repay the Swing Line Loans shall be evidenced by a promissory note of the Borrower dated the date hereof, payable to the order of the Swing Line Bank in the principal amount of the Swing Line Commitment and substantially in the form of Exhibit C (as amended, supplemented or otherwise modified from time to time, the “Swing Line Maturity DateNote”).
(d) being The Borrower shall have the earliest of the last day of right at any time and from time to time to prepay the Swing Line Interest Period applicable theretoLoans, in whole or in part, without premium or penalty (but in any event subject to Section 2.13, to the extent applicable), upon prior written, facsimile or telephonic notice to the Swing Line Bank given no later than 12:00 p.m. (noon), Philadelphia time, on the date of any proposed prepayment (each such date, a “Swing Line Prepayment Date”). Each notice of prepayment shall specify the amount to be prepaid (which, except in the case of payment in full, shall be in the principal amount of $100,000 or in integral multiples of $50,000 in excess thereof), shall be irrevocable and shall commit the Borrower to prepay such amount on such date, with accrued interest thereon and any amounts owed under Section 2.13 hereof. Unless the Borrower shall have notified the Agent prior to 12:00 p.m. (noon), Philadelphia time, that the Borrower intends to prepay such Swing Line Loan with funds other than the proceeds of a Revolving Credit Loan or shall have requested in accordance with subsection 2.1(d) hereof the making of a Eurodollar Loan to make such prepayment, the date Borrower shall be deemed to have given notice to the Agent requesting the Banks to make Revolving Credit Loans which shall earn interest at the Base Rate in effect on such Swing Line Prepayment Date in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, and subject to satisfaction or waiver of the conditions specified in Section 4.2, the Banks shall, on such Swing Line Prepayment Date, make Revolving Credit Loans, which shall earn interest at the Base Rate, in an aggregate amount equal to the amount of such Swing Line Loan plus accrued interest thereon, the proceeds of which shall be applied directly by the Agent to repay the Swing Line Bank for such Swing Line Loan plus accrued interest thereon; provided, that if for any reason the proceeds of such Revolving Credit Loans are not received by the Swing Line Bank on such Swing Line Prepayment Date in an aggregate amount equal to the amount of such Swing Line Loans being prepaid plus accrued interest, the Borrower shall reimburse the Swing Line Bank on the Business Day immediately following such Swing Line Prepayment Date, in same day funds, in an amount equal to the excess of the amount of such Swing Line Loan and accrued interest thereon over the aggregate amount of such Revolving Credit Loans, if any, received.
(e) In the event the Commitments are terminated in accordance with the terms hereof, the Swing Line Commitment shall also be terminated automatically. In the event the Borrower reduces the Total Commitment to less than the Swing Line Commitment, the Swing Line Commitment shall immediately be reduced to an amount equal to the Total Commitment. In the event the Borrower reduces the Total Commitment to less than the outstanding principal amount of the Swing Line Loans, the Borrower shall immediately repay the amount by which the outstanding Swing Line Loans exceeds the Swing Line Commitment as so reduced plus accrued interest thereon and any amounts owed under Section 2.13 hereof.
(f) In the event that the Borrower shall fail to repay the Swing Line Bank (i) the outstanding Swing Line Loans together with all accrued interest thereon on the Termination Date, (ii) the amount of any Swing Line Loan due on any Swing Line Prepayment Date, or (iii) any amounts required under subsection 2.2(e), the Agent shall promptly notify each Bank of the unpaid amount of such Swing Line Loan (including accrued interest thereon) and of such Bank’s respective participation therein in an amount equal to such Bank’s Commitment Percentage of such amount. Each Bank shall make available to the Agent for payment to the Swing Line Bank an amount equal to its respective participation therein (including, without limitation, its pro rata share of accrued but unpaid interest thereon, provided that the interest rate payable by the Banks shall not exceed the Base Rate), in same day funds, at the office of the Agent specified in such notice. If such notice is delivered by the Agent by 11:00 a.m., Philadelphia time, each Bank shall make funds available to the Agent on that Business Day. If such notice is delivered after 11:00 a.m., Philadelphia time, each Bank shall make funds available to the Agent on the next Business Day. In the event that any Bank fails to make available to the Agent the amount of such Bank’s participation in such unpaid amount as provided herein, the Swing Line Bank shall be entitled to recover such amount on demand from such Bank together with interest thereon at a rate per annum equal to the Federal Funds Effective Rate for each day during the period between the Business Day such payment is due in accordance with the terms of this subsection 2.2(f) and the date on which any Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the Agent its Commitment Percentage of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to make available to the Agent its Commitment Percentage of such unpaid amount on the Business Day such payment is due in accordance with the terms of this subsection 2.2(f). The Agent shall promptly distribute to each Bank which has paid all amounts payable by it under this subsection 2.2(f) with respect to the unpaid amount of any Swing Line Loan, such Bank’s Commitment Percentage of all payments received by the Agent from the Borrower in repayment of such Swing Line Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has paid all amounts payable by it under this Section 2.2(f) shall have been voluntarily terminated a direct right to repayment of such amounts from the Borrower subject to the procedures for repaying Banks set forth in this Section 2.2(f) and the provisions of Section 9.8.
(g) In addition to making Swing Line Loans pursuant to the foregoing provisions of this Section 2.2, without the requirement for a specific request from the Borrower pursuant to subsection 2.2(b), the Swing Line Bank may make Swing Line Loans to the Borrower in accordance with the provisions of any agreements between the Borrower and the Swing Line Bank relating to the Borrower’s deposit, sweep and other accounts at the Swing Line Bank and related arrangements and agreements regarding the management and investment of the Borrower’s cash assets as in effect from time to time (the “Cash Management Agreements”) to the extent of the daily aggregate net negative balance in the Borrower’s accounts which are subject to the provisions of the Cash Management Agreements. Swing Line Loans made pursuant to this subsection 2.2(g) in accordance with the provisions of the Cash Management Agreements shall (i) be subject to the limitations as to aggregate amount set forth in subsection 2.2(a), (ii) not be subject to the limitations as to individual amount set forth in subsection 2.2(a), (iii) be payable by the Borrower, both as to principal and interest, at the times set forth in the Cash Management Agreements (but in no event later than the Termination Date), (iv) not be made at any time after the Swing Line Bank has notice of the occurrence and during the continuance of a Default or Event of Default, (v) if not repaid by the Borrower in accordance with Section 2.6the provisions of the Cash Management Agreements, be subject to each Bank’s obligation to purchase participating interests therein pursuant to subsection 2.2(f), and (vi) except as provided in the date on which the Loans shall become due and payable pursuant foregoing subsections (i) through (v), be subject to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account all of the Borrower maintained terms and conditions of this Section 2.2.
(h) Each Bank shall, ratably in accordance with its Commitment Percentage, indemnify the Swing Line Lender.
Bank, its affiliates and their respective directors, officers, agents and employees (b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and extent not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid reimbursed by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard limiting its obligation to the occurrence of do so) against any Default cost, expense (including reasonable counsel fees and expenses), claim, demand, action, loss or Event of Default or the compliance by the Borrower with liability (except any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice foregoing that results from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the indemnitees’ gross negligence or willful misconduct of the Administrative Agent misconduct) that such indemnitees may suffer or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment incur in connection with Swing Line Loans and this Section 2.2 or any action taken or omitted by such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lenderindemnitees hereunder.
Appears in 1 contract
Samples: Credit Agreement (Aqua America Inc)
Swing Line Loans. (ai) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) Loans to the Borrower Company from time to time during prior to the Swing Line Termination Date in an aggregate principal amount at any one time outstanding not to exceed the Sterling Equivalent of $15,000,000 (the "Swing Line Loan Commitment"); provided, that after giving -------------------------- effect to any such Swing Line Loan, the Effective Amount of Revolving Loans, Swing Line Loans and L/C Obligations at such time would not exceed the Aggregate Revolving Loan Commitment at such time; and provided further -------- ------- that the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations at such time would not exceed the Borrowing Base at such time. Prior to the Swing Line Termination Date, the Company may use the Swing Line Commitment Period. by borrowing, prepaying the Swing Line Loans (i) may be repaid in whole or in part, and reborrowed reborrowing, all in accordance with the provisions terms and conditions hereof.
(ii) The Company may borrow under the Swing Line Commitment on any Business Day after the Initial Funding Date but on or prior to the Swing Line Termination Date; provided, that the Company shall give the -------- Swing Line Lender irrevocable written notice signed by a Responsible Officer or an authorized designee (which notice must be received by the Swing Line Lender prior to 11:00 a.m. (London time)) with a copy to the Agent specifying the amount of the requested Swing Line Loan, which shall be in a minimum amount of the Sterling Equivalent of $100,000 (or such lesser amount as is acceptable to the Swing Line Lender). The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Company in immediately available funds at the office of the Swing Line Lender by 1:00 p.m. (London time) on the date of such notice. The Company may at any time and from time to time, prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 11:00 a.m. (London time) on any Business Day of the date and amount of prepayment with a copy to the Agent. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of the Sterling Equivalent of $100,000 or a whole multiple of the Sterling Equivalent of $100,000 in excess thereof.
(iii) The Swing Line Lender, at any time in its sole and absolute discretion, may on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to so act on its behalf) notify the Agent to notify each Revolving Lender (including the Swing Line Lender) to make a Revolving Loan to the Company in a principal amount equal to such Bank's Pro Rata Revolving Share of the amount of such Swing Line Loan, and such Revolving Lender shall be obligated, pursuant to Section 2.01(c), to make Same Day -------------- Funds available to the Agent on the date such notice is given in an aggregate amount equal to or in excess of such Swing Line Loan, in which case such funds shall be applied by the Agent first to repay such Swing Line Loan and any remaining funds shall be made available to the Company in accordance with Section 2.01(c); provided, however, that such notice shall -------------- -------- ------- be deemed to have automatically been given upon the occurrence of an Event of Default under Section9.01(f) or (g). Upon notice from the Agent, each ------------- - Revolving Lender (other than the Swing Line Lender) will immediately transfer to the Agent, for transfer to the Swing Line Lender, in immediately available funds, an amount equal to such Revolving Lender's Pro Rata Revolving Share of the amount of such Swing Line Loan so repaid. Each Revolving Lender's obligation to transfer the amount of such Revolving Loan to the Agent shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set- off, counterclaim, recoupment, defense or other right which such Revolving Lender or any other Person may have against the Swing Line Lender, (ii) shall notthe occurrence or continuance of a Default or an Event of Default or the termination of the Revolving Loan Commitments, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result any adverse change in the aggregate outstanding principal balance condition (financial or otherwise) of all Swing Line Loans exceeding the Company or any other Person, (iv) any breach of this Agreement by the Company or any other Company or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(iv) Notwithstanding anything herein to the contrary, the Swing Line Commitment. The Swing Line Lender (i) shall not be obligated to make any Swing Line Loan at if the conditions set forth in Article V have not been satisfied and (ii) shall --------- not make any requested Swing Line Loan if, prior to 11:00 a.m. (London time) on the date two (2) days preceding the date of such requested Swing Line Loan, it has received a time when written notice from the Agent or any Revolving Lender directing it not to make further Swing Line Loans because one or more of the conditions specified in Article V are not then --------- satisfied.
(v) If prior to the making of a Revolving Loan required to be made by Section 2.01(e)(iii) an Event of Default described in Section 9.01(f) or ------------------- -------------- 9.01(g) shall have occurred and be continuing with respect to the Company, ------ each Revolving Lender will, on the date such Revolving Loan was to have been made pursuant to the notice described in default Section2.01(e)(iii), purchase ------------------ an undivided participating interest in the Dollar Equivalent of the Effective Amount of Swing Line Loans in an amount equal to its Pro Rata Revolving Share of the Dollar Equivalent of the Effective Amount of Swing Line Loans then outstanding. Each Revolving Lender will immediately transfer to the Agent for the benefit of the Swing Line Lender, in immediately available funds, the amount of its obligations under this Agreement unless participation.
(vi) Whenever, at any time after a Revolving Lender has purchased a participating interest in a Swing Line Loan, the Swing Line Lender has entered into arrangements satisfactory to it and receives any payment on account thereof, the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a distribute to the Agent for delivery to each Revolving Lender the Dollar Equivalent of its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender's participating interest was outstanding and funded); provided, however, that in the event that such payment -------- ------- received by the Swing Line Loan if Lender is required to be returned, such Revolving Lender will return to the Administrative Agent, or any Lender by notice Agent for delivery to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of any portion thereof previously distributed by the Swing Line Interest Period applicable thereto, Lender to it.
(vii) Each Revolving Lender's obligation to make the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower Revolving Loans referred to in accordance with Section 2.6, 2.01(e)(iii) and the date on which the Loans shall become due and payable to purchase participating ------------------- interests pursuant to Section2.01(e)(v) shall be absolute and unconditional ---------------- and shall not be affected by any circumstance, including, without limitation, (I) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender or the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with Company may have against the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender mayCompany or any other Person for any reason whatsoever, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon II) the occurrence or continuance of a Default or an Event of Default under Sections 9.1(h)Default, (iIII) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing any adverse change in the amount and in condition (financial or otherwise) of the manner specified in the preceding sentence and on the date specified in writing Company or any Subsidiary Guarantor, (IV) any breach of this Agreement or any other Loan Document by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default Company or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
Subsidiaries or any other Lender, (dV) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, whether or from any delay in paying, the Administrative Agent any amount such Lender not there is required by notice from the Administrative Agent to pay availability in accordance with this Section the Borrowing Base or (except in respect of lossesVI) any other circumstance, liabilities happening or other obligations suffered by the Administrative Agent event whatsoever, whether or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct not similar to any of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedforegoing.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, and relying upon the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid representations and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions warranties set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, this Agreement and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line other Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business DayDocuments, the Swing Line Lender may, in its sole and absolute discretion, give notice make available to the Lenders Borrower at any time and from time to time during the period from the Closing Date through and including the Business Day immediately preceding the earlier of (i) the date upon which the aggregate unpaid principal balance of the Swing Line Loans become due and payable by demand or (ii) the Expiry Date, by making Swing Line Loans to the Borrower that such in Dollars in an aggregate principal amount not exceeding at any one time outstanding Fifty Million and 00/100 Dollars ($50,000,000.00) (the "Swing Line Loan shall be funded with a borrowing Facility"); provided, however, that the sum of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all the Swing Line Lender's Swing Line Loans then outstanding, plus (viii) the Aggregate Dollar Equivalent principal amount of all Revolving Credit Exposure at such time and Loans outstanding of all the Banks, plus (viiiii) the aggregate Dollar Equivalent amount of Letters of Credit Outstanding at any one time shall not exceed the aggregate amount of the Commitments at Revolving Credit Facility Commitment as the same may be increased from time to time pursuant to Section 2.21. If not sooner paid, each Swing Line Loan, all unpaid interest thereon and all other sums and costs incurred hereunder with respect to such time.
Swing Line Loan shall be immediately due and payable on the earlier of (ci) Upon each receipt by a Lender of notice thirty (30) Business Days from the Administrative Agentdate such Swing Line Loan was made, such Lender shall purchase unconditionally(ii) demand or (iii) the Expiry Date, irrevocablywithout notice, presentment or demand (unless payable by demand). Within the limits of time and amount set forth in this Section 2.03.1, and severally (and not jointly) from subject to the provisions of this Agreement including, without limitation, the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal Lender's right to the product of its Commitment Percentage and the outstanding balance demand repayment of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and at any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded time with or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or an Event of Default or the compliance by the Default, Borrower with any of its obligations may borrow, repay and reborrow under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received2.02.1.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject to On the terms and subject to the conditions hereof, the Swing Line Lender Bank agrees to make loans under this Agreement lend to the Borrowers from time to time during the period from the Closing Date to but not including the Termination Date, such sums (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to as the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) Borrowers’ Agent may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result request in the aggregate outstanding principal balance up to the amount of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender , provided, that
(i) at no time shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default the sum of its obligations under this Agreement unless (A) the Swing Line Lender has entered into arrangements satisfactory to it and Total Revolving Outstandings plus (B) the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day outstanding principal amount of the Swing Line Interest Period applicable thereto, Loans exceed the date on which Aggregate Revolving Commitment Amounts,
(ii) the aggregate outstanding Swing Line Loans shall at no time exceed the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6Commitment, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of and
(iii) Swing Line Loans may be obtained and maintained, at its office designated in Section 11.2 by crediting such proceeds to an account the election of the Borrower maintained with Borrowers’ Agent but subject to the Swing Line Lenderlimitations hereof, as Prime Rate Advances or Alternate Advances.
(b) On Any request by the Borrowers’ Agent for a Swing Line Loan hereunder shall be in writing or by telephone and must be given so as to be received by the Swing Line Bank not later than 11:00 a.m. (Minneapolis time) on the Business Day such Swing Line Loan is to be made, specifying in each case (1) the amount to be borrowed, which shall be in a minimum amount of $100,000 and integral multiples of $50,000 for amounts greater than such minimum, (2) the requested borrowing date, and (3) whether such Swing Line Loan is to be funded as a Prime Rate Advance or an Alternate Advance. Each request for a Swing Line Loan hereunder shall be irrevocable and shall be deemed a representation by the Borrowers that on the requested borrowing date and after giving effect to the requested Swing Line Loan the applicable conditions specified in Article III have been and will be satisfied. The Swing Line Bank may rely on any Domestic Business Daytelephone request for Swing Line Loans by the Borrowers’ Agent hereunder which it believes in good faith to be genuine; and the Borrowers hereby waive the right to dispute the Swing Line Bank’s record of the terms of such telephone request. Unless the Swing Line Bank determines that any applicable condition specified in Article III has not been satisfied, the Swing Line Lender may, in its sole discretion, give notice Bank will make available to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to Borrowers at the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing Bank’s principal office in the amount and Minneapolis, Minnesota in the manner specified in the preceding sentence and Immediately Available Funds not later than 3:00 p.m. (Minneapolis time) on the requested borrowing date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such timerequested Swing Line Loan.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal may be repaid, prepaid and reborrowed hereunder from the Closing Date to the product of its Commitment Percentage and the outstanding balance of the Termination Date. The Borrowers’ Agent shall, prior to 11:00 a.m. (Minneapolis time), on each date on which it intends to repay a Swing Line Loans Loan (each, a “Swing Line Participation AmountConversion Date”) give notice to the Administrative Agent requesting a Prime Rate Advance in an aggregate amount equal to the principal amount of all outstanding Swing Line Loans outstanding as of the end of the immediately preceding day (other than Swing Line Loans that are to be prepaid on such Swing Line Conversion Date with funds of the Borrowers or from the proceeds of a Eurodollar Rate Advance for which notice was given to the Administrative Agent no later than 11:00 a.m. (Minneapolis time) at least two Eurodollar Business Days prior to such Swing Line Conversion Date but including any Swing Line Loans funded as Alternate Advances) and, subject to satisfaction or waiver of the conditions specified in Article III, the Banks shall, on the Swing Line Conversion Date, make a Prime Rate Advance (and/or Eurodollar Rate Advance, as the case may be) in an aggregate amount equal to the principal amount of all outstanding Swing Line Loans as of the end of the immediately preceding day, the proceeds of which shall be applied directly by the Administrative Agent to repay the Swing Line Bank for Swing Line Loans outstanding (less the amount of any Swing Line Loans that are to be repaid on such Swing Line Conversion Date from funds of the Borrowers). Each Lender ; provided, however, that if for any reason the proceeds of any such Advance(s) or such other funds of the Borrowers are not received by the Swing Line Bank on a Swing Line Conversion Date in an aggregate amount equal to the principal amount of all outstanding Swing Line Loans as of the end of the immediately preceding day, the Borrowers shall also be liable for reimburse the Swing Line Bank on the Business Day immediately following such Swing Line Conversion Date, in Immediately Available Funds, in an amount equal to the product excess of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoidedprincipal amount of all Swing Line Loans outstanding on the day immediately preceding such Swing Line Conversion Date over the aggregate amount of such Advance(s), or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documentsif any, received.
(d) In furtherance the event that the Swing Line Loans outstanding as of Section 2.2(c)the end of the day immediately preceding the Termination Date are not repaid on the Termination Date, upon each receipt Bank shall be deemed to have purchased participating interests in the Swing Line Loans existing as of the Termination Date in an amount equal to the amount of such Swing Line Loans multiplied by a Lender of notice from the such Bank’s Revolving Percentage. The Administrative Agent, such Lender Agent shall promptly notify each Bank of the unpaid amount of the Swing Line Loans and of such Bank’s respective participation therein. Each Bank shall make available to the Administrative Agent for the account of payment to the Swing Line Lender Bank an amount equal to its Swing Line Participation Amount respective participation therein (including without limitation its pro rata share of accrued but unpaid interest thereon), in same day funds, at the office of the Administrative Agent specified in Section 11.2such notice, not later than 11:00 a.m. (Minneapolis time), on the Business Day after the date the Administrative Agent so notifies each Bank. In the event that any Bank fails to make available to the Administrative Agent the amount of such Bank’s participation in lawful money such unpaid amount as provided herein, the Swing Line Bank shall be entitled to recover such amount on demand from such Bank together with interest thereon at a rate per annum equal to the Federal Funds Rate for each day during the period between the Termination Date and the date on which such Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the United States and in immediately Administrative Agent its pro rata share of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to make available fundsto the Administrative Agent its pro rata share of such unpaid amount on the Termination Date. The Administrative Agent shall deliver distribute to each Bank which has paid all amounts payable by it under this Section 2.3(d) with respect to the unpaid amount of any Swing Line Loan, such Bank’s pro rata share of all payments made received by the Administrative Agent from the Borrower in repayment of such Swing Line Loan when such payments are received. Notwithstanding anything to the contrary herein, each Lender pursuant Bank which has paid all amounts payable by it under this Section 2.3(d) shall have a direct right to repayment of such amounts from the Borrowers subject to the procedures for repaying Banks set forth in this Section 2.3.
(e) In the event the Revolving Commitments are terminated in accordance with Section 2.14, the Swing Line Commitment shall terminate automatically. In the event the Borrowers reduce the Aggregate Revolving Commitment Amounts to less than the Swing Line Commitment, the Swing Line Commitment shall immediately be reduced to an amount equal to the Aggregate Revolving Commitment Amounts. In the event the Borrowers reduces the Aggregate Revolving Commitment Amounts to less than the outstanding Swing Line Loans, the Borrowers shall immediately repay the amount by which the outstanding Swing Line Loans exceed the Swing Line Commitment as so reduced.
(f) Upon the occurrence of any Event of Default, each Swing Line Loan then outstanding shall automatically be converted to a Revolving Loan (which shall be a Prime Rate Advance) in an aggregate amount equal to the principal amount of all outstanding Swing Line Loans outstanding as of the end of the immediately preceding sentence day. Each Bank shall be deemed to have purchased participating interests in such Revolving Loan in an amount equal to the amount of such Revolving Loan multiplied by such Bank’s Revolving Percentage. The Administrative Agent shall promptly notify each Bank of the unpaid amount of the Swing Line Loans and of such Bank’s respective participation in the Revolving Loan. Each Bank shall make available to the Administrative Agent for payment to the Swing Line Lender promptly upon receipt thereof Bank an amount equal to its respective participation therein (including without limitation its pro rata share of accrued but unpaid interest thereon), in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless same day funds, at the office of the Administrative Agent and specified in such notice, not later than 11:00 a.m. (Minneapolis time), on the Business Day after the date the Administrative Agent so notifies each Bank. In the event that any Bank fails to make available to the Administrative Agent the amount of such Bank’s participation in such unpaid amount on such date (the “Swing Line Default Payment Date”) as provided herein, the Swing Line Lender Bank shall be entitled to recover such amount on demand from such Bank together with interest thereon at a rate per annum equal to the Federal Funds Rate for each day during the period between the Swing Line Default Payment Date and against the date on which such Bank makes available its participation in such unpaid amount. The failure of any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender Bank to pay, or from any delay in paying, make available to the Administrative Agent its pro rata share of any such unpaid amount such Lender is required by notice from shall not relieve any other Bank of its obligations hereunder to make available to the Administrative Agent its pro rata share of such unpaid amount on the Swing Line Default Payment Date. The Administrative Agent shall distribute to pay in accordance with each Bank which has paid all amounts payable by it under this Section (except in 2.3(f) with respect to the unpaid amount of lossesany converted Swing Line Loan, liabilities or other obligations suffered such Bank’s pro rata share of all payments received by the Administrative Agent from the Borrower in repayment of such converted Swing Line Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has paid all amounts payable by it under this Section 2.3(f) shall have a direct right to repayment of such amounts from the Borrowers subject to the procedures for repaying Banks set forth in this Section 2.3.
(g) Each Bank’s obligation to purchase participating interests pursuant to Section 2.3(d) and Section 2.3(f) in the amount required under such section shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Bank may have against any other Bank or the Swing Line LenderBorrowers, or the Borrowers may have against any Bank or any other Person, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and any reason whatsoever; (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand occurrence or continuance of a Default or Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrowers; (iv) any breach of this Agreement by any party hereto; (v) the Swing Line Lender. The Administrative Agent shall distribute such interest payments failure to satisfy any condition to the Swing Line Lender upon receipt thereof in like funds as received.
making of any Loan hereunder; or (evi) Whenever the Administrative Agent is reimbursed by the Borrower for the account any other circumstance, happening or event whatsoever, whether or not similar to any of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lenderforegoing.
Appears in 1 contract
Samples: Credit Agreement (Cabelas Inc)
Swing Line Loans. (a) Subject During the Revolving Commitment Period, subject to the terms and conditions hereofset forth in this Credit Agreement, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) Loans to the Borrower as the Borrower may from time to time during request for the purposes permitted hereby; provided, however, that (i) the aggregate principal amount of all outstanding Swing Line Loans shall not exceed the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereofSublimit, (ii) the Extensions of Credit of each Lender shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate not exceed such Lender's Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance Extensions of Credit of all Lenders shall not exceed the lesser of (x) the Borrowing Base and (y) the combined Commitments at any time. This is a revolving credit and, subject to the foregoing and the other terms and conditions hereof, the Borrower may borrow, prepay and reborrow Swing Line Loans exceeding as set forth herein without premium or penalty; provided, however, that Swing Line Lender may terminate or suspend the Swing Line Commitment. The Swing Line Lender shall not be obligated to make at any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by sole discretion upon notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwiseBorrower. Each Swing Line Loan shall bear interest at a rate equal to the Negotiated rate applicable to Base Rate applicable theretoLoans.
(b) Unless notified to the contrary by Swing Line Lender, the Borrower may irrevocably request a Swing Line Loan in a minimum aggregate amount of $100,000 and integral multiples of $10,000 in excess thereof upon notice to the Swing Line Lender not later than 1:00 p.m. (Milwaukee, Wisconsin time) therefor. Each such request for a Swing Line Loan shall constitute a representation and warranty by the Borrower that the conditions set forth in Section 4.2 are satisfied. Promptly after receipt of such request, the Swing Line Lender shall obtain telephonic verification from the Agent that such Swing Line Loan is permitted hereunder. Upon receiving such verification, the Swing Line Lender shall make such Swing Line Loan available to the Borrower. Without the consent of Required Lenders and the Swing Line Lender, no Swing Line Loan shall be made during the continuation of a Default or Event of Default. Upon the making of each Swing Line Loan, each Lender shall be deemed to have purchased from the Swing Line Lender a risk participation therein in an amount equal to that Lender's Swing Line Commitment Percentage times the amount of the Swing Line Loan.
(c) Each Swing Line Loan shall bear interest at a fluctuating rate per annum equal to the rate of interest payable on Base Rate Loans and interest shall be payable upon demand of the Swing Line Lender and on the Revolving Termination Date. The Swing Line Lender shall disburse be responsible for invoicing the proceeds of Borrower (or notifying the Agent to so invoice the Borrower) for such interest. The interest payable on Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent solely for the account of the Swing Line Lender its Lender, except following any funding of a risk participation under clause (f) below.
(d) The Borrower shall repay each Swing Line Participation Amount at Loan on the office earliest of (i) the Administrative Agent specified in Section 11.2fifth Business Day after it is made, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments (ii) upon demand made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as receivedand (iii) the Revolving Termination Date. Each Lender hereby indemnifies and agrees The Borrower shall repay the principal amount of each Swing Line Loan by payment directly to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all lossesor by Swing Line Lender debiting the Borrower's deposit account at Swing Line Lender not later than 10:00 a.m. (Milwaukee, liabilities (including liabilities Wisconsin time) for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on payments hereunder. If the part of such Lender to pay, or from any delay conditions precedent set forth in payingSection 4.2 can be satisfied, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent Borrower may request a Revolving Loan to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the repay Swing Line Lender, as or, failing to make such request, the case may be, resulting from the gross negligence or willful misconduct Borrower shall be deemed to have requested a Revolving Loan of the Administrative Agent or the Swing Line Lender, as the case may be), and Base Rate Loans on such Lender shall pay interest payment date pursuant to the Administrative Agent for the account of the subsection (f) below. Swing Line Lender from shall promptly notify the date such amount was due until paid in full, on the unpaid portion thereof, at a rate Agent of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the each Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedLoan and each payment thereof.
(e) Whenever If the Administrative Borrower fails to timely make any principal of or interest payment on any Swing Line Loan, Swing Line Lender shall notify the Agent is reimbursed of such fact and the unpaid amount. The Agent shall promptly notify each Lender of its pro rata share of such amount by 11:00 a.m. (Milwaukee, Wisconsin time). Each Lender shall make funds in an amount equal to its pro rata share of such amount available to the Agent at the Agent's Payment Office not later than the 2:00 p.m. (Milwaukee, Wisconsin time) for payments hereunder on the same Business Day. The obligation of each Lender to make such payment shall be absolute and unconditional and shall not be affected by the occurrence of an Event of Default or any other occurrence or event. Any such payment shall not relieve or otherwise impair the obligation of the Borrower for the account of to repay the Swing Line Lender for any payment in connection with amount of Swing Line Loans, together with interest as provided herein.
(f) If the conditions precedent set forth in Section 4.2 can be satisfied on any date the Borrower is obligated to, but fails to, repay a Swing Line Loan, the funding by Lenders pursuant to the previous subsection shall be deemed to be a borrowing of Base Rate Loans (without regard to the minimum amount therefor) deemed requested by the Borrower. If the conditions precedent set forth in Section 4.2 cannot be satisfied on the date the Borrower is obligated to make, but fails to make, such payment, the funding by Lenders pursuant to the previous subsection shall be deemed to be a funding by each Lender of its participation in such Swing Line Loan, and each Lender making such funding shall thereupon acquire a pro rata participation, to the extent of its payment, in the claim of Swing Line Lender against the Borrower in respect of such payment relates and shall share, in accordance with that pro rata participation, in any payment made by the Borrower with respect to an amount previously paid such claim. Any amounts made available by a Lender pursuant under its risk participation shall be payable by the Borrower upon demand of the Agent, and shall bear interest at a rate per annum equal to this Section, the Administrative Agent will promptly remit such payment to such LenderBase Rate plus 2% per annum.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Midwest Express Holdings Inc)
Swing Line Loans. (a) Subject to the terms and conditions hereofof this Agreement, including but not limited to Sections 4.13(c) and 6.2 of this Agreement, the Borrowers may request and the Swing Line Lender agrees to make loans under this Agreement (each a “consider, on an UNCOMMITTED AND ABSOLUTELY DISCRETIONARY BASIS, making Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower Loans from time to time during the Swing Line Commitment Periodperiod from and including the Syndication Date to but not including the Revolving Credit Termination Date. During the period from and including the Syndication Date to but not including the Revolving Credit Termination Date, the Borrowers may request the use of the Swing Line Loans (i) may be repaid by borrowing, prepaying the Swing Line Loans in whole or in part, and reborrowed requesting the reborrowing thereof, all in accordance with the provisions terms and conditions hereof; provided, however, that, after giving effect to any Loan, including any Swing Line Loan, or the issuance of any Letter of Credit hereunder:
(i) without the express written consent of such Lender, no Lender’s Credit Extensions (other than the Swing Line Lender’s Credit Extensions) shall exceed the lesser of (1) such Lender’s Uncommitted Participation Amount (including any increase or reduction thereof in accordance with the terms of this Agreement) or (2) such Lender’s Uncommitted Participation Percentage of the Borrowing Base then in effect;
(ii) the Facility Usage shall not exceed the lesser of (i) the Elected Facility Amount or (ii) the Borrowing Base; and
(iii) the Borrowers will be in compliance with the sublimits set forth in Section 2.4 of this Agreement.
(b) The Swing Line Loans will bear interest at the Alternative Base Rate plus the Applicable Margin plus 0.50% and may not be converted into Loans of a different Type. All Swing Line Loans will be denominated in Dollars.
(c) During the period from and including the Syndication Date to but not including the Revolving Credit Termination Date, the Borrowers may request to borrow Swing Line Loans on any Business Day (so long as, after giving effect to any such Swing Line Loan, no Lender’s Credit Extensions nor the Facility Usage violates the limitations set forth in Section 2.2(a) of this Agreement or the sublimits set forth in Section 2.4 of this Agreement), provided that Texadian shall notify the Administrative Agent and the Swing Line Lender of such request by telephone no later than 3:00 p.m., New York City time, on the day of the proposed Swing Line Loan specifying (i) that such Loan is to be a Swing Line Loan, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amountamount to be borrowed, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any date such Swing Line Loan at a time when any Lender is to made (provided, however, that if no date for such Swing Line Loan to be made is specified, then the date such Swing Line Loan is to be made will be assumed to be the date such Swing Line Loan is requested). Each such telephonic request shall be in default of its obligations under this Agreement unless the irrevocable and shall be promptly confirmed by a Borrowing Request delivered by hand or facsimile.
(d) If, for any reason a Swing Line Lender has entered into arrangements satisfactory to it and Loan is not repaid on the Borrower to eliminate the applicable Swing Line Lender’s risk with respect Maturity Date, the Administrative Agent may, on or after the immediately following Business Day, effect repayment of the unpaid amount of such Swing Line Loan as follows:
(i) Without any request therefor from any Borrower, the Administrative Agent may make a Revolving Credit Loan that is a Base Rate Loan to such defaulting Lender’s participation in the Borrowers on behalf of the Lenders, the proceeds of which shall be applied to repay all or a portion of the unpaid amount of such Swing Line Loan. The Swing Line Upon making such Base Rate Loan, the Administrative Agent will send notice thereof to the Borrowers and the Lenders (unless the Administrative Agent has received a written Notice of Declining Lender will not make from one or more Lenders (A) in the case of a Swing Line Loan if the Administrative Agentrequested by Texadian, or any Lender by notice prior to the Swing Line Lender and the Borrower no later than 5:00 p.m., New York time, one Domestic (1) Business Day prior to the Administrative Agent’s receipt of any Borrowing Date Request for the applicable Swing Line Loan, and (B) in the case of a Swing Line Loan not requested by the Borrowers to repay a Daylight Overdraft Loan or to reimburse a drawing under a Letter of Credit, prior to 5:00 p.m., New York time, one (1) Business Day prior to the Administrative Agent’s receipt of any Borrowing Request for the applicable Daylight Overdraft Loan or the Issuing Bank’s receipt of the Application for applicable Letter of Credit, in which event in each such case the provisions of Section 2.8 of this Agreement shall be applicable), whereupon, the Lenders (including the Swing Line Lender to the extent that it is also a Lender), other than any Lender that has elected to become a Declining Lender in accordance with this Agreement with respect to such Swing Line Loan, shall have determined fund their respective pro rata share of such Revolving Credit Loan without offset, deduction or counterclaim.
(ii) Notwithstanding any other provisions of this Agreement to the contrary, to the extent that all or any portion of such Revolving Credit Loan may not be (A) legally made by the Administrative Agent to the Borrowers for any other reason (including the bankruptcy or insolvency of any Borrower), or (B) made by the Administrative Agent because any of the conditions set forth in Sections 5 and/or 6, as applicable, have precedent to the making of a Revolving Credit Loan pursuant to Section 2.1(a) or Section 6.2 of this Agreement could not been satisfied and such conditions remain unsatisfied be fulfilled as of the date such Revolving Credit Loan would otherwise have been made, each Lender severally, unconditionally and irrevocably agrees that it shall, without regard to the occurrence of any Default or Event of Default, purchase a participating interest in such Swing Line Loan in an amount equal to such Lender’s pro rata share of such Swing Line Loan (unless the Administrative Agent has received a written Notice of Declining Lender from one or more Lenders (A) in the case of a Swing Line Loan requested time by the Borrowers, prior to 5:00 p.m., New York time, one (1) Business Day prior to the Administrative Agent’s receipt of any Borrowing Request for the applicable Swing Line Loan, and (B) in the case of a Swing Line Loan not requested by the Borrowers to repay a Daylight Overdraft Loan or to reimburse a drawing under a Letter of Credit, prior to 5:00 p.m., New York time, one (1) Business Day prior to the Administrative Agent’s receipt of any Borrowing Request for the applicable Daylight Overdraft Loan or the Issuing Bank’s receipt of the making Application for applicable Letter of Credit, in which event in each such case the provisions of Section 2.8 of this Agreement shall be applicable). Each such Lender will immediately transfer to the Administrative Agent, in immediately available funds, the amount of its participation, and the proceeds of such Loanparticipation shall be distributed by the Administrative Agent to the Swing Line Lender, to such extent as will reduce the amount of the participating interest retained by the Swing Line Lender in its Swing Line Loans. Each Lender purchasing a participating interest in Swing Line Loans under this Section 2.2(d)(ii) shall have the same rights as a Lender under this Agreement. In the event any Lender fails to make available to the Swing Line Lender the amount of such Lender’s participation as provided in this Section 2.2(d)(ii), the Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest at the customary rate set by the Swing Line Lender for correction of errors among banks for one (1) Business Day and thereafter at Alternative Base Rate.
(e) Each Lender’s obligation to purchase participating interests pursuant to Section 2.2(d)(ii) of this Agreement shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any Borrower may have against the Swing Line Lender, any Borrower or any other Person, as the case may be, for any reason whatsoever; (ii) the occurrence or continuance of a Default or Event of Default; (iii) any adverse change in the condition (financial or otherwise) of any Borrower or any of its Subsidiaries; (iv) any breach of this Agreement by any Borrower or any Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(f) Unless and until each Swing Line Loan is repaid to the Swing Line Lender, each such Swing Line Loan shall be due and constitute a Loan from the Swing Line Lender to the Borrowers which is payable on the day (the “applicable Swing Line Maturity Date”) being the earliest Date and which shall otherwise be entitled to all of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6benefits of, and the date on which security provided for in, the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line LenderDocuments.
(bg) On Anything contained herein to the contrary notwithstanding, in the event that any Domestic Business DayLender becomes a Defaulting Lender, then the Swing Line Lender may, in its sole discretion, give require such Defaulting Lender or, in the event such Defaulting Lender fails to do so, require the Borrowers to deposit Cash Collateral with the Administrative Agent in an aggregate amount equal to such Defaulting Lender’s participations in any requested or outstanding Swing Line Loans, a first priority security interest in which Cash Collateral is hereby granted in favor of the Administrative Agent, for the sole benefit of the Swing Line Lender. In the event that such Defaulting Lender fails to deposit Cash Collateral as required hereby and the Borrowers are required to do so, the Borrowers may, at any time thereafter, upon five (5) Business Days prior written notice to such Defaulting Lender, require that such Defaulting Lender terminate its obligations hereunder and under the other Loan Documents and transfer all of such Lender’s Credit Extensions to one or more of the existing Lenders (upon their consent to accept such accommodations) or to one or more new Lenders acceptable to the Borrowers and the Administrative Agent if such transferee Lenders can be found.
(h) Each of the conditions precedent set forth in Section 6.2 of this Agreement shall be fully applicable to any Swing Line Loans.
(i) Notwithstanding anything to the contrary in this Agreement or in the other Loan Documents, (i) the Swing Line Loans shall rank pari passu with all other Loans and shall be secured by the Collateral, and (ii) unless and until each Swing Line Loan is funded by payment from the Lenders to the Administrative Agent, any and all payments by the Borrower that such outstanding Borrowers in respect of any Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent solely for the account benefit of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2and, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of after such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered funding by the Administrative Agent or the Swing Line LenderLenders, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and all such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand payments by the Swing Line Lender. The Administrative Agent Borrowers shall distribute such interest payments to the Swing Line Lender upon receipt thereof be distributed as otherwise set forth in like funds as receivedthis Agreement.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Uncommitted Credit Agreement (Par Petroleum Corp/Co)
Swing Line Loans. (a) Subject to the terms and conditions hereofset forth in this Agreement, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, Loans until the “Swing Line Loans”) to the Borrower Revolving Commitment Termination Date as Borrowers may from time to time during request; provided, however, that the aggregate outstanding principal amount of Swing Line Loans shall not exceed the Swing Line Commitment Periodat any time; provided further that in no event shall the Outstanding Obligations at any time exceed the lesser of (x) the Combined Commitments then in effect and (y) an amount equal to 300% of the Free Corporate Cash Flow for the four fiscal quarter period most recently ended on or before such time of determination. Swing Line Loans (i) may be repaid shall constitute Loans for all purposes hereunder. Subject to the foregoing and reborrowed in accordance with the provisions other terms and conditions hereof, (ii) shall notBorrowers may borrow, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, prepay and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all reborrow Swing Line Loans exceeding as set forth herein until the Revolving Commitment Termination Date without premium or penalty. 38
(b) Swing Line Commitment. The Loans made by Swing Line Lender shall not be obligated to make any Swing Line Loan at evidenced by a time when any Lender shall be in default of its obligations under this Agreement unless the loan account or records maintained by Swing Line Lender has entered into arrangements satisfactory to it and in the Borrower to eliminate Ordinary Course of Business. Upon the request of Swing Line Lender’s risk , Swing Line Lender's Swing Line Loans may be evidenced by a Swing Line Note, instead of or in addition to loan accounts. Swing Line Lender may attach schedules to its Swing Line Note and endorse thereon the date, amount and maturity of its Swing Line Loans and payments with respect to such defaulting Lender’s participation in thereto. Such loan accounts, records or Swing Line Note shall be conclusive absent manifest error of the amount of such Swing Line LoanLoans and payments thereon. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, Any failure so to record or any Lender by notice error in doing so shall not, however, limit or otherwise affect the obligation of Borrowers to pay any amount owing with respect to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line LenderLoans.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject to On the terms and subject to the conditions hereof, the Swing Line Lender Bank agrees to make loans under this Agreement lend to the Borrowers from time to time during the period from the Closing Date to but not including the Termination Date, such sums (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to as the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) Borrowers’ Agent may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result request in the aggregate outstanding principal balance up to the amount of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender , provided, that
(i) at no time shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default the sum of its obligations under this Agreement unless (A) the Swing Line Lender has entered into arrangements satisfactory to it and Total Revolving Outstandings plus (B) the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day outstanding principal amount of the Swing Line Interest Period applicable thereto, Loans exceed the date on which Aggregate Revolving Commitment Amounts,
(ii) the aggregate outstanding Swing Line Loans shall at no time exceed the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6Commitment, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of and
(iii) Swing Line Loans may be obtained and maintained, at its office designated in Section 11.2 by crediting such proceeds to an account the election of the Borrower maintained with Borrowers’ Agent but subject to the Swing Line Lenderlimitations hereof, as Prime Rate Advances or Alternate Advances.
(b) On Any request by the Borrowers’ Agent for a Swing Line Loan hereunder shall be in writing or by telephone and must be given so as to be received by the Swing Line Bank not later than 11:00 a.m. (Minneapolis time) on the Business Day such Swing Line Loan is to be made, specifying in each case (1) the amount to be borrowed, which shall be in a minimum amount of $100,000 and integral multiples of $50,000 for amounts greater than such minimum, (2) the requested borrowing date, and (3) whether such Swing Line Loan is to be funded as a Prime Rate Advance or an Alternate Advance. Each request for a Swing Line Loan hereunder shall be irrevocable and shall be deemed a representation by the Borrowers that on the requested borrowing date and after giving effect to the requested Swing Line Loan the applicable conditions specified in Article III have been and will be satisfied. The Swing Line Bank may rely on any Domestic Business Daytelephone request for Swing Line Loans by the Borrowers’ Agent hereunder which it believes in good faith to be genuine; and the Borrowers hereby waive the right to dispute the Swing Line Bank’s record of the terms of such telephone request. Unless the Swing Line Bank determines that any applicable condition specified in Article III has not been satisfied, the Swing Line Lender may, in its sole discretion, give notice Bank will make available to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to Borrowers at the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing Bank’s principal office in the amount and Minneapolis, Minnesota in the manner specified in the preceding sentence and Immediately Available Funds not later than 3:00 p.m. (Minneapolis time) on the requested borrowing date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such timerequested Swing Line Loan.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal may be repaid, prepaid and reborrowed hereunder from the Closing Date to the product of its Commitment Percentage and the outstanding balance of the Termination Date. The Borrowers’ Agent shall, prior to 11:00 a.m. (Minneapolis time), on each date on which it intends to repay a Swing Line Loans Loan (each, a “Swing Line Participation AmountConversion Date”) give notice to the Agent requesting a Prime Rate Advance in an aggregate amount equal to the principal amount of all outstanding Swing Line Loans outstanding as of the end of the immediately preceding day (other than Swing Line Loans that are to be prepaid on such Swing Line Conversion Date with funds of the Borrowers or from the proceeds of a Eurodollar Rate Advance for which notice was given to the Agent no later than 11:00 a.m. (Minneapolis time) at least two Eurodollar Business Days prior to such Swing Line Conversion Date but including any Swing Line Loans funded as Alternate Advances) and, subject to satisfaction or waiver of the conditions specified in Article III, the Banks shall, on the Swing Line Conversion Date, make a Prime Rate Advance (and/or Eurodollar Rate Advance, as the case may be) in an aggregate amount equal to the principal amount of all outstanding Swing Line Loans as of the end of the immediately preceding day, the proceeds of which shall be applied directly by the Agent to repay the Swing Line Bank for Swing Line Loans outstanding (less the amount of any Swing Line Loans that are to be repaid on such Swing Line Conversion Date from funds of the Borrowers). Each Lender ; provided, however, that if for any reason the proceeds of any such Advance(s) or such other funds of the Borrowers are not received by the Swing Line Bank on a Swing Line Conversion Date in an aggregate amount equal to the principal amount of all outstanding Swing Line Loans as of the end of the immediately preceding day, the Borrowers shall also be liable for reimburse the Swing Line Bank on the Business Day immediately following such Swing Line Conversion Date, in Immediately Available Funds, in an amount equal to the product excess of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoidedprincipal amount of all Swing Line Loans outstanding on the day immediately preceding such Swing Line Conversion Date over the aggregate amount of such Advance(s), or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documentsif any, received.
(d) In furtherance the event that the Swing Line Loans outstanding as of Section 2.2(c)the end of the day immediately preceding the Termination Date are not repaid on the Termination Date, upon each receipt Bank shall be deemed to have purchased participating interests in the Swing Line Loans existing as of the Termination Date in an amount equal to the amount of such Swing Line Loans multiplied by a Lender of notice from the Administrative Agent, such Lender Bank’s Revolving Percentage. The Agent shall promptly notify each Bank of the unpaid amount of the Swing Line Loans and of such Bank’s respective participation therein. Each Bank shall make available to the Administrative Agent for the account of payment to the Swing Line Lender Bank an amount equal to its Swing Line Participation Amount respective participation therein (including without limitation its pro rata share of accrued but unpaid interest thereon), in same day funds, at the office of the Administrative Agent specified in such notice, not later than 11:00 a.m. (Minneapolis time), on the Business Day after the date the Agent so notifies each Bank. In the event that any Bank fails to make available to the Agent the amount of such Bank’s participation in such unpaid amount as provided herein, the Swing Line Bank shall be entitled to recover such amount on demand from such Bank together with interest thereon at a rate per annum equal to the Federal Funds Rate for each day during the period between the Termination Date and the date on which such Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the Agent its pro rata share of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to make available to the Agent its pro rata share of such unpaid amount on the Termination Date. The Agent shall distribute to each Bank which has paid all amounts payable by it under this Section 11.22.3(d) with respect to the unpaid amount of any Swing Line Loan, such Bank’s pro rata share of all payments received by the Agent from the Borrower in lawful money repayment of such Swing Line Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has paid all amounts payable by it under this Section 2.3(d) shall have a direct right to repayment of such amounts from the Borrowers subject to the procedures for repaying Banks set forth in this Section 2.3.
(e) In the event the Revolving Commitments are terminated in accordance with Section 2.14, the Swing Line Commitment shall terminate automatically. In the event the Borrowers reduce the Aggregate Revolving Commitment Amounts to less than the Swing Line Commitment, the Swing Line Commitment shall immediately be reduced to an amount equal to the Aggregate Revolving Commitment Amounts. In the event the Borrowers reduces the Aggregate Revolving Commitment Amounts to less than the outstanding Swing Line Loans, the Borrowers shall immediately repay the amount by which the outstanding Swing Line Loans exceed the Swing Line Commitment as so reduced.
(f) Upon the occurrence of any Event of Default, each Swing Line Loan then outstanding shall automatically be converted to a Revolving Loan (which shall be a Prime Rate Advance) in an aggregate amount equal to the principal amount of all outstanding Swing Line Loans outstanding as of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to end of the immediately preceding sentence day. Each Bank shall be deemed to have purchased participating interests in such Revolving Loan in an amount equal to the amount of such Revolving Loan multiplied by such Bank’s Revolving Percentage. The Agent shall promptly notify each Bank of the unpaid amount of the Swing Line Loans and of such Bank’s respective participation in the Revolving Loan. Each Bank shall make available to the Agent for payment to the Swing Line Lender promptly upon receipt thereof Bank an amount equal to its respective participation therein (including without limitation its pro rata share of accrued but unpaid interest thereon), in like funds same day funds, at the office of the Agent specified in such notice, not later than 11:00 a.m. (Minneapolis time), on the Business Day after the date the Agent so notifies each Bank. In the event that any Bank fails to make available to the Agent the amount of such Bank’s participation in such unpaid amount on such date (the “Swing Line Default Payment Date”) as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and provided herein, the Swing Line Lender Bank shall be entitled to recover such amount on demand from and against any and all losses, liabilities (including liabilities such Bank together with interest thereon at a rate per annum equal to the Federal Funds Rate for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on each day during the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or period between the Swing Line LenderDefault Payment Date and the date on which such Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the Agent its pro rata share of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to make available to the Agent its pro rata share of such unpaid amount on the Swing Line Default Payment Date. The Agent shall distribute to each Bank which has paid all amounts payable by it under this Section 2.3(f) with respect to the unpaid amount of any converted Swing Line Loan, such Bank’s pro rata share of all payments received by the Agent from the Borrower in repayment of such converted Swing Line Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has paid all amounts payable by it under this Section 2.3(f) shall have a direct right to repayment of such amounts from the Borrowers subject to the procedures for repaying Banks set forth in this Section 2.3.
(g) Each Bank’s obligation to purchase participating interests pursuant to Section 2.3(d) and Section 2.3(f) in the amount required under such section shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Bank may have against any other Bank or the Borrowers, or the Borrowers may have against any Bank or any other Person, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and any reason whatsoever; (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand occurrence or continuance of a Default or Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrowers; (iv) any breach of this Agreement by any party hereto; (v) the Swing Line Lender. The Administrative Agent shall distribute such interest payments failure to satisfy any condition to the Swing Line Lender upon receipt thereof in like funds as received.
making of any Loan hereunder; or (evi) Whenever the Administrative Agent is reimbursed by the Borrower for the account any other circumstance, happening or event whatsoever, whether or not similar to any of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lenderforegoing.
Appears in 1 contract
Samples: Credit Agreement (Cabelas Inc)
Swing Line Loans. (a) Subject The Borrower may prior to the terms and conditions hereofRevolving Credit Maturity Date, as set forth in this Section, request the Swing Line Lender agrees to make loans under this Agreement (each a “make, and the Swing Line Loan” andLender prior to the Revolving Credit Maturity Date will make, collectivelySwing Line Loans to the Borrower, in an aggregate principal amount at any one time outstanding, not exceeding $10,000,000, provided that:
(i) there may be no more than two (2) different Interest Periods for Swing Line Loans outstanding at the “same time;
(ii) the aggregate principal amount of all Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance , together with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance amount of all outstanding Revolving Credit Loans, at any one time outstanding shall not at any one time exceed the aggregate amount of the Revolving Credit Commitments of all of the Banks at such time; and
(iii) the aggregate principal amount of all Swing Line Loans, together with all outstanding Revolving Credit Loans exceeding made by the Swing Line CommitmentLender, at any one time outstanding shall not exceed the Revolving Credit Commitment of the Swing Line Lender.
(b) When the Borrower wishes to request a Swing Line Loan, it shall give the Agent notice substantially in the form of Exhibit P hereto (a "Swing Line Loan Request") so as to be received no later than 11:00 A.M. (Atlanta, Georgia time) on or before the date of the proposed Swing Line Borrowing proposed therein (or such other time and date as the Borrower and the Swing Line Lender may agree), specifying:
(i) the proposed date of such Swing Line Borrowing, which shall be a Domestic Business Day (the "Borrowing Date");
(ii) the aggregate amount of such Swing Line Borrowing, which shall be at least $500,000 (or in larger multiples of $100,000) but shall not cause the limits specified in Section 2.13
(a) to be violated; and
(iii) the duration of the Interest Period applicable thereto, which shall be 1 to 14 days. The Borrower may request Swing Line Loans for up to two (2) different Interest Periods in a single Swing Line Loan Request; provided that the request for each separate Interest Period shall be deemed to be a separate Swing Line Loan Request for a separate Swing Line Borrowing. Except as otherwise provided in the immediately preceding sentence, the Borrower shall not deliver a Swing Line Loan Request more frequently than once every 3 Domestic Business Days.
(c) The Swing Line Lender shall not be obligated to make any the amount of such Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory available to it and the Borrower to eliminate on such date by depositing the Swing Line Lender’s risk with respect to such defaulting Lender’s participation same, in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agentimmediately available funds, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the such Borrower maintained with the Swing Line Lender.
(bd) Subject to the limitations contained in this Agreement, the Borrower may borrow under this Section 2.13, prepay and reborrow under this Section 2.13 at any time before the Revolving Credit Maturity Date. Each Swing Line Loan included in any Swing Line Borrowing shall mature, and the principal amount thereof shall be due and payable, on the first to occur of: (i) the last day of the Interest Period applicable to such Swing Line Borrowing; or (ii) the Revolving Credit Maturity Date;
(e) At any time, upon the request of the Swing Line Lender, each Bank other than the Swing Line Lender shall, on the third Domestic Business Day after such request is made, purchase a participating interest in Swing Line Loans in an amount equal to its ratable share (based upon its respective Revolving Credit Commitment) of such Swing Line Loans. On any such third Domestic Business Day, each Bank will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation. Whenever, at any time after the Swing Line Lender mayhas received from any such Bank its participating interest in a Swing Line Loan, the Agent receives any payment on account thereof, the Agent will distribute to such Bank its participating interest in such amount (appropriately adjusted, in its sole discretionthe case of interest payments, give notice to reflect the period of time during which such Bank's participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Agent is required to be returned, such Bank will return to the Lenders Agent any portion thereof previously distributed by the Agent to it. Each Bank's obligation to purchase such participating interests shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation: (i) any set-off, counterclaim, recoupment, defense or other right which such Bank or any other Person may have against the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans Lender requesting such purchase or any other Person for any reason whatsoever; (provided that such notice shall be deemed to have been automatically given upon ii) the occurrence or continuance of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing the termination of the Revolving Credit Loans made as ABR Advances (each such borrowingCommitments, a “Mandatory Borrowing”), provided that no Bank shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly required to purchase a participating interest in any Swing Line Loan first advanced after the Swing Line Lender has actual knowledge of an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Bank, provided that no Bank shall be required to repay such outstanding purchase a participating interest in any Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) if the aggregate outstanding principal amount of all Swing Line Loans then outstandingexceeds $10,000,000; or (v) any other circumstance, (vi) the Aggregate Credit Exposure at such time and (vii) the amount happening or event whatsoever, whether or not similar to any of the Commitments at such timeforegoing.
(cf) Upon each receipt by a Lender of notice from Notwithstanding anything contained in this Agreement to the Administrative Agentcontrary, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation Loan facility contained in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities 2.13 shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.terminate immediately upon:
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and Wachovia's removal or resignation as Agent; or (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account termination of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderRevolving Credit Commitments (whether at maturity or otherwise).
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereofof this Agreement, during the Commitment Period, the Swing Line Lender agrees to shall make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) Loan to the Borrower in such amount or amounts as Borrower may from time to time during request, but not exceeding in aggregate principal amount at any time outstanding hereunder the Swing Line Commitment PeriodCommitment. Swing Line Loans Loans: (i) shall be payable on the Swing Line Loan Maturity Date applicable to each such Swing Line Loan; (ii) shall be made only in U.S. dollars; (iii) may be repaid or prepaid and reborrowed in accordance with the provisions hereof, ; (iiiv) shall not, immediately may only be made if after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and thereto (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (vA) the aggregate principal amount of all Swing Line Loans then outstandingoutstanding does not exceed the Swing Line Commitment, and (B) the Revolving Credit Exposure would not exceed the Total Commitment Amount; (v) shall not be made if, after giving effect thereto, Borrower would be required to prepay Loans or Cash Collateralize Letters of Credit pursuant to Section 2.9 hereof; (vi) shall not be made if the Aggregate Credit Exposure at such time proceeds thereof would be used to repay, in whole or in part, any outstanding Swing Line Loan and (vii) the amount at no time shall there be more than one (1) borrowing of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal outstanding hereunder, excluding any Cash Sweep Swing Line Loan. Borrower shall have the option, subject to the product of its Commitment Percentage terms and the outstanding balance of the conditions set forth herein, to borrow Swing Line Loans (eachLoans, a “maturing on the applicable Swing Line Participation Amount”)Loan Maturity Date, by means of Daily Simple SOFR Loans. Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest on the unpaid principal amount of each Daily Simple SOFR Loan outstanding from time to the Administrative Agent for the account of the Swing Line Lender time, from the date thereof until paid, at an interest rate equal to Derived SOFR Rate in effect on each day. Interest on such amount was due until paid in full, Daily Simple SOFR Loans shall be payable on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the applicable Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedLoan Maturity Date.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereofset forth herein (including Section 2.19), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swing Line Swingline Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) Swingline Loans to the Borrower from time to time during the Swing Line Commitment Revolving Availability Period. Swing Line Loans , denominated in dollars, in an aggregate principal amount at any time outstanding that will not result in (i) may be repaid and reborrowed in accordance with the provisions hereof, outstanding Swingline Loans of the Swingline Lender exceeding its Swingline Commitment or (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure aggregate Revolving Exposures exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in aggregate Revolving Commitments; provided that the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Swingline Lender shall not be obligated required to make any Swing Line a Swingline Loan at a time when (x) to refinance an outstanding Swingline Loan or (y) if any Lender shall be in default of its obligations under this Agreement unless is at that time a Defaulting Lender and after giving effect to Section 2.19(a)(iv), any Defaulting Lender Fronting Exposure remains outstanding. Within the Swing Line Lender has entered into arrangements satisfactory to it foregoing limits and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice subject to the Swing Line Lender terms and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Swingline Lender of such request (i) by telephone (confirmed in Sections 5 and/or 6writing), as applicablenot later than 1:00 p.m., have New York time, or, if agreed by the Swingline Lender, 2:00 p.m., New York time or (ii) by facsimile or other electronic transmission (confirmed by telephone), not been satisfied later than 1:00 p.m., New York Time, or, if agreed by the Swingline Lender, 2:00 p.m., New York Time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and such conditions remain unsatisfied as shall specify the requested date (which shall be a Business Day), the amount of the requested time of Swingline Loan and (x) if the making of such Loan. Each Swing Line Loan shall funds are not to be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant credited to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an a general deposit account of the Borrower maintained with the Swing Line Swingline Lender.
(b) On any Domestic Business Day, the Swing Line location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender mayshall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower maintained with the Swingline Lender or such other deposit account identified by Borrower (or, in its sole discretionthe case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), give notice by remittance to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h)applicable Issuing Bank) by 3:00 p.m., (i) or (j))New York Time, in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving requested date of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Swingline Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon The Swingline Lender may by written notice given to the Administrative Agent not later than 1:00 p.m., New York Time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice and such *Confidential Treatment Requested. Omitted portions filed with the Commission. Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt by a Lender of notice from as provided above, to pay to the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its Swing Line Participation Amount at obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the office occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds in the applicable currency, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (with references to 12:00 noon, New York Time, in such Section being deemed to be references to 3:00 p.m., New York Time) (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent specified in Section 11.2, in lawful money of shall promptly remit to the United States and in immediately available fundsSwingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall deliver notify the payments made by each Lender Borrower of any participations in any Swingline Loan acquired pursuant to the immediately preceding sentence this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and not to the Swing Line Swingline Lender. Any amounts received by the Swingline Lender from and against any and all losses, liabilities the Borrower (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure or other Person on behalf of the part Borrower) in respect of such a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to pay, or from the Administrative Agent; any delay in paying, such amounts received by the Administrative Agent any amount such Lender is required shall be promptly remitted by notice from the Administrative Agent to pay in accordance with the Revolving Lenders that shall have made their payments pursuant to this Section (except in respect of lossesparagraph and to the Swingline Lender, liabilities as their interests may appear, provided that any such payment so remitted shall be repaid to the Swingline Lender or other obligations suffered by the Administrative Agent or the Swing Line LenderAgent, as the case may be, resulting and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) The Borrower may, at any time and from the gross negligence time to time, designate as additional Swingline Lenders one or willful misconduct more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of the Administrative Agent or the Swing Line Lenderan appointment as a Swingline Lender hereunder shall be evidenced by an agreement, as the case may be), which shall be in form and such Lender shall pay interest substance reasonably satisfactory to the Administrative Agent for and the account Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of the Swing Line Lender from the date such amount was due until paid in fullacceptance, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from such Revolving Lender shall have all the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, rights and obligations of a Swingline Lender under this Agreement and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments references herein to the Swing Line term “Swingline Lender” shall be deemed to include such Revolving Lender upon receipt thereof in like funds its capacity as receiveda lender of Swingline Loans hereunder.
(e) Whenever The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent is reimbursed by Agent. Any such termination shall become effective upon the Borrower for earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the account fifth Business Day following the date of the Swing Line delivery thereof, provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender for shall have been reduced to zero. Notwithstanding the effectiveness of any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Sectiontermination, the Administrative Agent will promptly remit such payment terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such Lendertermination, but shall not make any additional Swingline Loans. *Confidential Treatment Requested. Omitted portions filed with the Commission.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereofset forth herein, the Swing Line Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans in Dollars to Borrower during the Revolving Credit Period in such amounts as Borrower may request, provided that (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to each such Swing Line Loan, shall have determined that (A) the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each aggregate Swing Line Loan Outstandings shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6not exceed $25,000,000, and (B) the date on which the aggregate outstanding principal amount of all Committed Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account plus the Letter of Credit Liabilities shall not exceed the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunderaggregate Commitments, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) without the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount consent of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative AgentLenders, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the no Swing Line Lender a participation in Loan may be made during the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence continuation of any Default or Event of Default and (iii) the Swing Line Lender has not given at least twenty-four hours prior notice to Borrower that availability under the Swing Line is suspended or terminated. Borrower may borrow, repay and reborrow under this Section. Unless notified to the compliance contrary by the Borrower with any of its obligations Swing Line Lender, borrowings under the Loan Documents.
(d) In furtherance Swing Line may be made in amounts which are integral multiples of Section 2.2(c), $250,000 upon each receipt telephonic request by a Lender of notice from the Administrative Agent, such Lender shall promptly make available an Authorized Officer made to the Administrative Agent not later than 1:00 P.M. (California local time), on the Domestic Business Day of the requested Swing Line Loan (which telephonic request shall be promptly confirmed in writing by telecopier). Promptly after receipt of such a request for a Swing Line Loan, the Administrative Agent shall provide telephonic verification to the Swing Line Lender that the requested Swing Line Loan is in conformity with this Section. Unless the Swing Line Lender otherwise agrees, each repayment of a Swing Line Loan shall be in an amount which is an integral multiple of $250,000. If Borrower instructs the Swing Line Lender to debit its demand deposit account at the Swing Line Lender in the amount of any payment with respect to a Swing Line Loan, or the Swing Line Lender otherwise receives repayment, after 3:00 p.m. (California local time), on a Domestic Business Day, such payment shall be deemed received on the next Domestic Business Day. The Swing Line Lender shall promptly notify the Administrative Agent of the Swing Line Outstandings each time there is a change therein.
(b) The Swing Line Lender shall be responsible for submitting invoices to Borrower for such interest. The interest payable on Swing Line Loans shall be solely for the account of the Swing Line Lender its unless and until the Lenders fund their participations therein pursuant to clause (d) of this Section.
(c) The Swing Line Participation Amount at Loans shall be payable on demand made by the office Swing Line Lender and in any event on the Termination Date.
(d) Upon the making of a Swing Line Loan, each Lender shall be deemed to have purchased from the Swing Line Lender a participation therein in an amount equal to that Lender’s percentage of the Administrative Agent specified in Section 11.2, in lawful money aggregate Commitments times the amount of the United States and in immediately available fundsSwing Line Loan. The Administrative Agent shall deliver the payments Upon demand made by the Swing Line Lender, each Lender pursuant shall, according to the immediately preceding sentence such percentage, promptly provide to the Swing Line Lender promptly upon receipt thereof its purchase price therefor in like funds as receivedan amount equal to its participation therein. Each The obligation of each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and so provide its purchase price to the Swing Line Lender from shall be absolute and against any unconditional and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered shall not be affected by the Administrative Agent occurrence of a Default or Event of Default. Each Lender that has provided to the Swing Line Lender, as Lender the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the purchase price due for its participation in Swing Line LenderLoans shall thereupon acquire a pro rata participation, as the case may be), and such Lender shall pay interest to the Administrative Agent for extent of such payment, in the account claim of the Swing Line Lender from against Borrower for principal and interest and shall share, in accordance with that pro rata participation, in any principal payment made by Borrower with respect to such claim and in any interest payment made by Borrower (but only with respect to periods subsequent to the date such amount was due until Lender paid the Swing Line Lender its purchase price) with respect to such claim.
(e) In the event that the Swing Line Outstandings are in fullexcess of $10,000,000 on three consecutive Domestic Business Days then, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to next Domestic Business Day (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments unless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings below $10,000,000), Borrower shall request a Borrowing in an amount sufficient to reduce the Swing Line Outstandings below $10,000,000. In addition, upon receipt thereof any demand for payment of the Swing Line Outstandings by the Swing Line Lender (unless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings to $0), Borrower shall request a Borrowing in like funds an amount sufficient to repay all Swing Line Outstandings (and, for this purpose, the limitations as received.
(e) Whenever to the minimum amounts of Base Rate Borrowings set forth in Section 2.01 shall not apply). In each case, the Administrative Agent is reimbursed shall automatically provide the responsive Loans made by each Lender to the Swing Line Lender (which the Swing Line Lender shall then apply to the Swing Line Outstandings). In the event that Borrower fails to request a Borrowing within the time specified by Section 2.02 on any such date, the Administrative Agent may, but shall not be required to, without notice to or the consent of Borrower, cause Loans to be made by the Borrower for Lenders under their Commitments in amounts which are sufficient to reduce the account Swing Line Outstandings as required above. The conditions precedent set forth in Section 3.01 shall not apply to Loans to be made by the Lenders pursuant to the three preceding sentences. The proceeds of such Loans shall be paid directly to the Swing Line Lender for any payment in connection with application to the Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderOutstandings.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to Bank may in its discretion make swing line loans under this Agreement in Dollars (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower Borrowers from time to time during the Revolver Commitment Period in an aggregate outstanding principal amount up to the amount of the Swing Line Commitment Period. for periods not to exceed seven days as requested by the Borrowers and agreed to by the Swing Line Bank; provided, that, no Swing Line Loan shall be made if, after giving effect to the making of such Swing Line Loan and the simultaneous application of the proceeds thereof, (x) the aggregate Revolver Exposure of all the Banks would exceed the aggregate amount of the Revolver Commitments of all of the Banks or (y) the aggregate amount of all Revolving Loans made by a Bank plus such Bank’s Commitment Percentage of the amount of Swing Line Loans (i) and Letter of Credit Obligations then outstanding would exceed its Revolver Commitment. Within the foregoing limits, the Borrowers may be repaid during the Revolver Commitment Period borrow, repay and reborrowed reborrow under the Swing Line Commitment, subject to and in accordance with the provisions terms and limitations hereof. The interest rate for a Swing Line Loan shall be the Daily LIBOR Rate plus the Applicable Margin (or such rate that is mutually agreed to by the Borrower’ Representative and the Swing Line Bank in writing at the time the Swing Line Loan is made) or, if the Cash Management Agreement (as defined in clause (i) below are in affect, at the rate determined in accordance with the Cash Management Agreement.
(b) The Borrowers may request a Swing Line Loan to be made on any Business Day. Each request for a Swing Line Loan shall be in the form of a Notice of Borrowing (or a request by telephone immediately confirmed in writing, it being understood that the Swing Line Bank may rely on the authority of any individual making such telephonic request without the necessity of receipt of such written confirmation) and received by the Agent not later than 11:00 a.m. (Philadelphia time) on the Business Day such Swing Line Loan is to be made, specifying in each case (i) the amount to be borrowed, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amountrequested borrowing date, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all date such Swing Line Loans exceeding Loan is to be repaid, if applicable (the “Swing Line Repayment Date”). The request for such Swing Line Loan shall be irrevocable. Provided that all applicable conditions precedent contained herein have been satisfied, the Swing Line Commitment. The Swing Line Lender shall Bank shall, not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to 4:00 p.m., Philadelphia time, on the Borrowing Date with respect to date specified in the Borrowers’ request for such Swing Line Loan, make such Swing Line Loan by crediting the Borrowers’ deposit account with the Swing Line Bank.
(c) The obligation of the Borrowers to repay the Swing Line Loans shall be evidenced by a promissory note of the Borrowers dated the date hereof, payable to the order of the Swing Line Bank in the principal amount of the Swing Line Commitment and substantially in the form of Exhibit A-2 (as amended, supplemented or otherwise modified from time to time, the “Swing Line Note”).
(d) Swing Line Loans and accrued interest thereon shall be repaid on the earlier of (1) the Revolver Termination Date, (2) the Swing Line Repayment Date for such Swing Line Loan or (3) the seventh day after the date such Swing Line Loan was made (any such date being the “Swing Line Conversion Date”). Unless the Borrowers shall have determined notified the Agent prior to 11:00 a.m., Philadelphia time, on such Swing Line Conversion Date that the Borrowers intend to repay such Swing Line Loan with funds other than the proceeds of a Revolving Loan, the Borrowers shall be deemed to have given notice to the Agent requesting the Banks to make Revolving Loans which shall earn interest at the Base Rate in effect on the Swing Line Conversion Date in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, and subject to satisfaction or waiver of the conditions specified in Section 4.2, the Banks shall, on the Swing Line Conversion Date, make Revolving Loans, which shall earn interest at the Base Rate, in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, the proceeds of which shall be applied directly by the Agent to repay the Swing Line Bank for such Swing Line Loan plus accrued interest thereon; and provided, further, that if for any reason the proceeds of such Revolving Loans are not received by the Swing Line Bank on the Swing Line Conversion Date in an aggregate amount equal to the amount of such Swing Line Loan plus accrued interest, the Borrowers shall reimburse the Swing Line Bank on the day immediately following the Swing Line Conversion Date, in same day funds, in an amount equal to the excess of the amount of such Swing Line Loan over the aggregate amount of such Revolving Loans, if any, received plus accrued interest thereon.
(e) In the event that the Borrowers shall fail to repay the Swing Line Bank as provided in this Section 2.3(e) in an amount equal to the amount required under Section 2.3(d), the Agent shall promptly notify each Bank of the unpaid amount of such Swing Line Loan and of such Bank’s respective participation therein in an amount equal to such Bank’s pro rata share of such Swing Line Loan (based on its Commitment Percentage). Each Bank shall make available to the Agent for payment to the Swing Line Bank an amount equal to its respective participation therein (including without limitation its pro rata share of accrued but unpaid interest thereon), in same day funds, at the office of the Agent specified in such notice, not later than 11:00 a.m., Philadelphia time, on the Business Day after the date the Agent notifies each Bank. In the event that any Bank fails to make available to the Agent the amount of such Bank’s participation in such unpaid amount as provided herein, the Swing Line Bank shall be entitled to recover such amount on demand from such Bank together with interest thereon at a rate per annum equal to the Federal Funds Effective Rate for each day during the period between the Swing Line Conversion Date and the date on which any Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the Agent its pro rata share of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to make available to the Agent its pro rata share of such unpaid amount on the Swing Line Conversion Date. The Agent shall distribute to each Bank which has paid all amounts payable by it under this Section 2.3(e) with respect to the unpaid amount of any Swing Line Loan, such Bank’s pro rata share of all payments received by the Agent from the Borrowers in repayment of such Swing Line Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has paid all amounts payable by it under this Section 2.3(e) shall have a direct right to repayment of such amounts from the Borrowers subject to the procedures for repaying Banks set forth in Sections 5 and/or 6this Section 2.3(e) and the provisions of Section 9.8.
(f) In the event the Revolver Commitments are terminated in accordance with the terms hereof, as applicablethe Swing Line Commitment shall also be terminated automatically. In the event the Borrowers reduce the Revolver Commitment to less than the Swing Line Commitment, have not been satisfied and such conditions remain unsatisfied as the Swing Line Commitment shall immediately be reduced to an amount equal to the Revolver Commitment. In the event the Borrowers reduce the Revolver Commitment to less than the outstanding principal amount of the requested Swing Line Loans, the Borrowers shall immediately repay the amount by which the outstanding Swing Line Loans exceeds the Swing Line Commitment as so reduced plus accrued interest thereon.
(g) At no time of the making of such Loanshall there be more than two outstanding Swing Line Loans. Each Swing Line Loan shall be due in an original principal amount of $100,000 or a whole multiple thereof.
(h) The Borrowers shall have the right at any time and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of from time to time to prepay the Swing Line Interest Period applicable theretoLoans, the date on which in whole or in part, without premium or penalty (but in any event subject to Section 2.18), upon prior written, facsimile or telephonic notice to the Swing Line Commitment Bank given no later than 11:00 a.m., Philadelphia time, on the date of any proposed prepayment. Each notice of prepayment shall have been voluntarily terminated by specify the Borrower in accordance with Section 2.6, Swing Line Loan to be prepaid and the date amount to be prepaid (which shall be in the principal amount of $100,000 or in integral amounts of $50,000 in excess thereof) , shall be irrevocable and shall commit the Borrowers to prepay such amount on which the such date, with accrued interest thereon and any amounts owed under Section 2.18 hereof.
(i) In addition to making Swing Line Loans shall become due and payable pursuant to the foregoing provisions hereofof this Section 2.3, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at without the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse requirement for a specific request from the proceeds of Swing Line Loans at its office designated in Borrowers pursuant to Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day2.3(b), the Swing Line Lender may, in its sole discretion, give notice Bank may make Swing Line Loans to the Lenders Borrowers in accordance with the provisions of the agreements between the Borrowers and the Borrower that such outstanding Swing Line Loan Bank relating to the Borrowers’ deposit, sweep and other accounts at the Swing Line Bank and related arrangements and agreements regarding the management and investment of the Borrowers’ cash assets as in effect from time to time (the “Cash Management Agreements”) to the extent of the daily aggregate net negative balance in the Borrowers’ accounts which are subject to the provisions of the Cash Management Agreements. Swing Line Loans made pursuant to this Section 2.3(i) in accordance with the provisions of the Cash Management Agreements shall (i) be funded with a borrowing subject to the limitations as to aggregate amount set forth in Section 2.3(a), (ii) not be subject to the limitations as to number or individual amount set forth in Sections 2.3(g) or the repayment provisions of Revolving Credit Loans Section 2.3(d), (provided that such iii) be payable by the Borrowers, both as to principal and interest, at the times set forth in the Cash Management Agreements (but in no event later than the Revolver Termination Date), (iv) not be made at any time after the Swing Line Bank has notice shall be deemed to have been automatically given upon of the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory BorrowingDefault, (v) if not repaid by the aggregate principal amount Borrowers in accordance with the provisions of all Loans then outstandingthe Cash Management Agreements, be subject to each Bank’s obligation to purchase participating interests therein pursuant to Section 2.3(e), and (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation except as provided in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to foregoing subsections (i) from the date such amount was due until the third day therefromthrough (v), the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments be subject to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account all of the Swing Line Lender for any payment in connection with Swing Line Loans terms and such payment relates to an amount previously paid by a Lender pursuant to conditions of this Section, the Administrative Agent will promptly remit such payment to such LenderSection 2.3.
Appears in 1 contract
Samples: Credit Agreement (Tasty Baking Co)
Swing Line Loans. (a) Subject to the terms and conditions hereof, the The Borrower shall repay each Swing Line Lender agrees Loan on the earlier to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans occur of (i) may be repaid the date ten Business Days after such Loan is made and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Maturity Date (x) with respect to the Revolving A Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Facility if such Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory was made prior to it and the Borrower to eliminate the Swing Line Lender’s risk such date or (y) with respect to such defaulting Lender’s participation in the Revolving B Credit Facility if such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if was made on or after the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Maturity Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as Revolving A Credit Facility.”
SECTION 2.11. Section 2.09(a) of the requested time of Credit Agreement is hereby amended by replacing the making of such Loan. Each Swing Line Loan shall be due and payable reference therein to “on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Availability Period applicable theretofor the Revolving Credit Facility” with a reference to “on the last day of the Availability Period for each Revolving Credit Facility.”
SECTION 2.12. Each of Section 2.14(a) and Section 2.15(a) of the Credit Agreement is hereby amended by replacing the reference therein to “$50,000,000” with a reference to “$100,000,000”. Each of Section 2.14(e) and Section 2.15(e) of the Credit Agreement is hereby amended by deleting the “and” at the end of clause (ii)(A) in the first sentence therein, and by inserting a comma and a new clause (ii)(C) at the end of clause (ii)(B) thereof, as follows: “and (C) if the Borrower or any of its Subsidiaries then has secured Indebtedness (or commitments therefor) (other than the Obligations) outstanding (after giving pro forma effect to the application of proceeds of Loans to be made upon the effectiveness of such increase of such Facility), the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds ratio of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv1) the Borrowing Date sum of such Mandatory Borrowing, (vA) the aggregate principal amount of all Loans then outstandingsuch secured Indebtedness (or commitments therefor), plus (viB) the Aggregate Credit Exposure aggregate amount of the Obligations outstanding at such time and (viiafter giving effect to such increase of such Facility), plus (C) the amount aggregate undrawn portions of the Revolving Credit Commitments at such time.
time (c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal after giving effect to the product of its Commitment Percentage and the outstanding balance any increase of the Swing Line Loans Revolving Credit Facility), to (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product 2) Consolidated EBITDA of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by Subsidiaries on a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent consolidated basis for the account Measurement Period most recently ended as of such date, does not exceed 1.50 to 1.0.”
SECTION 2.13. Section 7.01 of the Swing Line Lender its Swing Line Participation Amount Credit Agreement is hereby amended by deleting the “and” at the office end of clause (p) thereto, by replacing the Administrative Agent specified in Section 11.2, in lawful money period at the end of the United States clause (q) thereto with “; and” and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds inserting a new clause (r) thereto as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.follows:
Appears in 1 contract
Swing Line Loans. (ai) Subject On any date prior to the Maturity Date on which the Agent receives any Loan Request in respect of the Available Total Commitment pursuant to 2.7, designated as a Swing Line Loan, the Agent promptly shall notify the Swing Line Lender and, subject to the terms and conditions hereof, the Swing Line Lender agrees to shall, on the date the Agent receives such Loan Request, make loans under this Agreement an advance (each a “"Swing Line Loan” and, collectively, the “") in accordance with any such notice. The aggregate amount of Swing Line Loans”Loans at any time outstanding shall not exceed the lesser of (A) to $3,000,000 and (B) the Available Total Commitment ("Swing Line Availability"). Until the Maturity Date, any Borrower may from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid borrow, repay and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations reborrow under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan2.1(c). Each Swing Line Loan shall be due and payable made pursuant to a Loan Request in respect of the Available Total Commitment pursuant to 2.7. Each such Loan Request must be given no later than 12:00 p.m. (Boston time) on the day (Business Day of the “proposed Swing Line Maturity Date”) being Loan. Notwithstanding any other provision of this Agreement or the earliest of the last day of other Loan Documents, the Swing Line Interest Period applicable theretoLoans shall constitute Base Rate Loans. The Borrowers shall repay the aggregate outstanding principal amount of each Swing Line Loan upon demand therefor by the Agent, provided that (i) absent an Event of Default or any other event which, with the giving of notice or passage of time or both, would constitute an Event of Default, the Agent shall not make such demand prior to the Business Day next succeeding the date on which the such Swing Line Commitment shall have been voluntarily terminated by Loan is made and (ii) all amounts of principal and accrued interest outstanding on the Borrower in accordance with Section 2.6, and Maturity Date or the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether earlier maturity by acceleration or otherwise. Each Swing Line Loan otherwise shall bear interest at the Negotiated Rate applicable thereto. be paid in full on such date.
(ii) The Swing Line Lender shall disburse the proceeds of Swing Line Loans Lender, at its office designated in Section 11.2 by crediting such proceeds any time and from time to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, time in its sole and absolute discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based may on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds behalf of each Mandatory Borrowing shall be remitted directly to Borrower (and each Borrower hereby irrevocably authorizes the Swing Line Lender to repay such outstanding so act on its behalf) request each Lender (including the Swing Line Loan. Each Lender irrevocably agrees in its capacity as a Lender) to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: such Borrower (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether which shall be a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereonBase Rate Loan) in an amount equal to such Lender's Percentage of the product of its Commitment Percentage and the outstanding balance aggregate principal amount of the Swing Line Loans made to such Borrower (each, a “the "Refunded Swing Line Participation Amount”)Loan") outstanding on the date such notice is given. Each Unless any of the events described in 9.1(f) or 9.1(g) shall have occurred (in which event the procedures of 2.1(c)(iii) shall apply) and regardless of whether the conditions precedent set forth in this Credit Agreement to the making of a Revolving Credit Loan are then satisfied, each Lender shall also be liable for an amount equal disburse directly to the product Agent such Lender's Percentage of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Refunded Swing Line Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account on behalf of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2Lender, in lawful money of the United States and prior to 1:00 p.m. (Boston time), in immediately available fundsfunds on the Business Day next succeeding the date such notice is given. The Administrative Agent proceeds of such Revolving Credit Loans shall deliver the payments made by each Lender pursuant to the be immediately preceding sentence paid to the Swing Line Lender promptly upon receipt thereof and applied to repay the Refunded Swing Line Loan.
(iii) If, prior to refunding any Swing Line Loan pursuant to 2.1(c)(ii), one of the events described in like funds as received. Each 9.1(f) or 9.1(g) shall have occurred, then, subject to the provisions of 2.1(c)(iv) below, each Lender hereby indemnifies and agrees will, on the date such Revolving Credit Loan was to hold harmless have been made for the Administrative Agent and benefit of a Borrower, purchase from the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on an undivided participation interest in the part Swing Line Loan in an amount equal to its Percentage of such Swing Line Loan. Upon request, each Lender will promptly transfer to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as in immediately available funds, the case may be, resulting from the gross negligence or willful misconduct amount of the Administrative Agent or the Swing Line Lender, as the case may be), its participation and such Lender shall pay interest to the Administrative Agent for the account of upon receipt thereof the Swing Line Lender from will deliver to such Lender a Swing Line Loan Participation Certificate, substantially in the form of Exhibit A attached hereto, dated the date of receipt of such amount was due until paid funds and in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedamount.
(eiv) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Each Lender's obligation to make Revolving Credit Loans and such payment relates to an amount previously paid by a Lender pursuant to topurchase participating interests in accordance with this Section, the Administrative Agent will promptly remit such payment to such Lender.2.1
Appears in 1 contract
Samples: Revolving Credit Agreement (Dynamics Research Corp)
Swing Line Loans. (a) Subject to the terms and conditions hereofof this Agreement, including but not limited to Sections 4.13(c) and 6.2 of this Agreement, the Borrowers may request and the Swing Line Lender agrees to make loans under this Agreement (each a “consider, on an UNCOMMITTED AND ABSOLUTELY DISCRETIONARY BASIS, making Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower Loans from time to time during the Swing Line Commitment Periodperiod from and including the Amendment Effective Date to but not including the Revolving Credit Termination Date. During the period from and including the Amendment Effective Date to but not including the Revolving Credit Termination Date, the Borrowers may request the use of the Swing Line Loans (i) may be repaid by borrowing, prepaying the Swing Line Loans in whole or in part, and reborrowed requesting the reborrowing thereof, all in accordance with the provisions terms and conditions hereof; provided, however, that, after giving effect to any Loan, including any Swing Line Loan, or the issuance of any Letter of Credit hereunder:
(i) without the express written consent of such Lender, no Lender’s Credit Extensions, including any participations in Swing Line Loans purchased by such Lender in accordance with Section 2.2(d)(ii) and any participations in Daylight Overdraft Loans purchased by such Lender in accordance with Section 2.3(c)(ii) (other than the Swing Line Lender’s Credit Extensions) shall exceed the lesser of (1) such Lender’s Uncommitted Participation Amount (including any increase or reduction thereof in accordance with the terms of this Agreement) or (2) such Lender’s Uncommitted Participation Percentage of the Borrowing Base then in effect;
(ii) the Facility Usage shall not exceed the lesser of (A) the Elected Facility Amount or (B) the Borrowing Base; and
(iii) the Borrowers will be in compliance with the sublimits set forth in Section 2.4 of this Agreement.
(b) The Swing Line Loans will bear interest at the Alternative Base Rate plus the Applicable Margin plus 0.50% and may not be converted into Loans of a different Type. All Swing Line Loans will be denominated in Dollars.
(c) During the period from and including the Amendment Effective Date to but not including the Revolving Credit Termination Date, the Borrowers may request to borrow Swing Line Loans on any Business Day (so long as, after giving effect to any such Swing Line Loan, no Lender’s Credit Extensions nor the Facility Usage violates the limitations set forth in Section 2.2(a) of this Agreement or the sublimits set forth in Section 2.4 of this Agreement), provided that Texadian shall notify the Administrative Agent and the Swing Line Lender of such request by telephone no later than 3:00 p.m., New York City time, on the day of the proposed Swing Line Loan specifying (i) that such Loan is to be a Swing Line Loan, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amountamount to be borrowed, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any date such Swing Line Loan at a time when any Lender is to made (provided, however, that if no date for such Swing Line Loan to be made is specified, then the date such Swing Line Loan is to be made will be assumed to be the date such Swing Line Loan is requested). Each such telephonic request shall be in default of its obligations under this Agreement unless the irrevocable and shall be promptly confirmed by a Borrowing Request delivered by hand or facsimile.
(d) If, for any reason a Swing Line Lender has entered into arrangements satisfactory to it and Loan is not repaid on the Borrower to eliminate the applicable Swing Line Lender’s risk with respect Maturity Date, the Administrative Agent may, on or after the immediately following Business Day, effect repayment of the unpaid amount of such Swing Line Loan as follows:
(i) Without any request therefor from any Borrower, the Administrative Agent may make a Revolving Credit Loan that is a Base Rate Loan to such defaulting Lender’s participation in the Borrowers on behalf of the Lenders, the proceeds of which shall be applied to repay all or a portion of the unpaid amount of such Swing Line Loan. The Swing Line Upon making such Base Rate Loan, the Administrative Agent will send notice thereof to the Borrowers and the Lenders (unless the Administrative Agent has received a written Notice of Declining Lender will not make from one or more Lenders (A) in the case of a Swing Line Loan if the Administrative Agentrequested by Texadian, or any Lender by notice prior to the Swing Line Lender and the Borrower no later than 5:00 p.m., New York City time, one Domestic (1) Business Day prior to the Administrative Agent’s receipt of any Borrowing Date Request for the applicable Swing Line Loan, and (B) in the case of a Swing Line Loan not requested by the Borrowers to repay a Daylight Overdraft Loan or to reimburse a drawing under a Letter of Credit, prior to 5:00 p.m., New York City time, one (1) Business Day prior to the Administrative Agent’s receipt of any Borrowing Request for the applicable Daylight Overdraft Loan or the Issuing Bank’s receipt of the Application for the applicable Letter of Credit, in which event in each such case the provisions of Section 2.8 of this Agreement shall be applicable), whereupon, the Lenders (including the Swing Line Lender to the extent that it is also a Lender), other than any Lender that has elected to become a Declining Lender in accordance with this Agreement with respect to such Swing Line Loan, shall have determined fund their respective pro rata share of such Revolving Credit Loan without offset, deduction or counterclaim.
(ii) Notwithstanding any other provisions of this Agreement to the contrary, to the extent that all or any portion of such Revolving Credit Loan may not be (A) legally made by the Administrative Agent to the Borrowers for any other reason (including the bankruptcy or insolvency of any Borrower), or (B) made by the Administrative Agent because any of the conditions set forth in Sections 5 and/or 6, as applicable, have precedent to the making of a Revolving Credit Loan pursuant to Section 2.1(a) or Section 6.2 of this Agreement could not been satisfied and such conditions remain unsatisfied be fulfilled as of the date such Revolving Credit Loan would otherwise have been made, each Lender severally, unconditionally and irrevocably agrees that it shall, without regard to the occurrence of any Default or Event of Default, purchase a participating interest in such Swing Line Loan in an amount equal to such Lender’s pro rata share of such Swing Line Loan (unless the Administrative Agent has received a written Notice of Declining Lender from one or more Lenders (A) in the case of a Swing Line Loan requested time by the Borrowers, prior to 5:00 p.m., New York City time, one (1) Business Day prior to the Administrative Agent’s receipt of any Borrowing Request for the applicable Swing Line Loan, and (B) in the case of a Swing Line Loan not requested by the Borrowers to repay a Daylight Overdraft Loan or to reimburse a drawing under a Letter of Credit, prior to 5:00 p.m., New York City time, one (1) Business Day prior to the Administrative Agent’s receipt of any Borrowing Request for the applicable Daylight Overdraft Loan or the Issuing Bank’s receipt of the making Application for applicable Letter of Credit, in which event in each such case the provisions of Section 2.8 of this Agreement shall be applicable). Each such Lender will immediately transfer to the Administrative Agent, in immediately available funds, the amount of its participation, and the proceeds of such Loanparticipation shall be distributed by the Administrative Agent to the Swing Line Lender, to such extent as will reduce the amount of the participating interest retained by the Swing Line Lender in its Swing Line Loans. Each Lender purchasing a participating interest in Swing Line Loans under this Section 2.2(d)(ii) shall have the same rights as a Lender under this Agreement. In the event any Lender fails to make available to the Swing Line Lender the amount of such Lender’s participation as provided in this Section 2.2(d)(ii), the Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest at the customary rate set by the Swing Line Lender for correction of errors among banks for one (1) Business Day and thereafter at Alternative Base Rate.
(e) Each Lender’s obligation to purchase participating interests pursuant to Section 2.2(d)(ii) of this Agreement shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any Borrower may have against the Swing Line Lender, any Borrower or any other Person, as the case may be, for any reason whatsoever; (ii) the occurrence or continuance of a Default or Event of Default; (iii) any adverse change in the condition (financial or otherwise) of any Borrower or any of its Subsidiaries; (iv) any breach of this Agreement by any Borrower or any Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. This Section 2.2(e) shall survive (i) any Declining Lender’s termination of its obligations under this Agreement so as to require enforcement of the obligations of the Lenders herein as against any Declining Lender, and (ii) the Revolving Credit Termination Date, so as to require enforcement of the obligations of the Lenders herein as against each Lender.
(f) Unless and until each Swing Line Loan is repaid to the Swing Line Lender, each such Swing Line Loan shall be due and constitute a Loan from the Swing Line Lender to the Borrowers which is payable on the day (the “applicable Swing Line Maturity Date”) being the earliest Date and which shall otherwise be entitled to all of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6benefits of, and the date on which security provided for in, the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line LenderDocuments.
(bg) On Anything contained herein to the contrary notwithstanding, in the event that any Domestic Business DayLender becomes a Defaulting Lender, then the Swing Line Lender may, in its sole discretion, give require such Defaulting Lender or, in the event such Defaulting Lender fails to do so, require the Borrowers to deposit Cash Collateral with the Administrative Agent in an aggregate amount equal to such Defaulting Lender’s participations in any requested or outstanding Swing Line Loans, a first priority security interest in which Cash Collateral is hereby granted in favor of the Administrative Agent, for the sole benefit of the Swing Line Lender. In the event that such Defaulting Lender fails to deposit Cash Collateral as required hereby and the Borrowers are required to do so, the Borrowers may, at any time thereafter, upon five (5) Business Days prior written notice to such Defaulting Lender, require that such Defaulting Lender terminate its obligations hereunder and under the other Loan Documents and transfer all of such Lender’s Credit Extensions to one or more of the existing Lenders (upon their consent to accept such accommodations) or to one or more new Lenders, in each case in accordance with Section 11.6(c) of this Agreement, if such Assignee can be found by the Borrowers.
(h) Each of the conditions precedent set forth in Section 6.2 of this Agreement shall be fully applicable to any Swing Line Loans.
(i) Notwithstanding anything to the contrary in this Agreement or in the other Loan Documents, (i) the Swing Line Loans shall rank pari passu with all other Loans and shall be secured by the Collateral, and (ii) unless and until each Swing Line Loan is funded by payment from the Lenders to the Administrative Agent, any and all payments by the Borrower that such outstanding Borrowers in respect of any Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent solely for the account benefit of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2and, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of after such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered funding by the Administrative Agent or the Swing Line LenderLenders, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and all such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand payments by the Swing Line Lender. The Administrative Agent Borrowers shall distribute such interest payments to the Swing Line Lender upon receipt thereof be distributed as otherwise set forth in like funds as receivedthis Agreement.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Uncommitted Credit Agreement (Par Petroleum Corp/Co)
Swing Line Loans. (ai) Subject to the terms and conditions hereof, the Swing Line Lender agrees to Bank may in its discretion make swing line loans under this Agreement in Dollars (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower Borrowers from time to time during the Commitment Period in an aggregate outstanding principal amount up to the amount of the Swing Line Commitment Period. for periods not to exceed seven days as requested by the Borrowers and agreed to by the Swing Line Bank; provided, that, no Swing Line Loan shall be made if, after giving effect to the making of such Swing Line Loan and the simultaneous application of the proceeds thereof, (x) the aggregate amount of all outstanding Swing Line Loans plus the aggregate Dollar Equivalent amount of all outstanding Revolver Loans plus the aggregate amount of the Letter of Credit Obligations then outstanding, would exceed the Total Commitments or (iy) the aggregate Dollar Equivalent amount of all Revolver Loans made by a Bank plus such Bank’s Ratable Share (based on its Commitment Percentage) of the amount of Swing Line Loans and Letter of Credit Obligations then outstanding would exceed its Commitment. Within the foregoing limits, the Borrowers may be repaid during the Commitment Period borrow, repay and reborrowed reborrow under the Swing Line Commitment, subject to and in accordance with the provisions terms and limitations hereof. The interest rate for a Swing Line Loan shall be the rate that is mutually agreed by the Borrowers and the Swing Line Bank at the time such Swing Line Loan is made or, absent such an agreement, at the Base Rate.
(ii) The Borrowers may request a Swing Line Loan to be made on any Business Day. Each request for a Swing Line Loan shall be in the form of a Notice of Borrowing (or a request by telephone immediately confirmed in writing, it being understood that the Swing Line Bank may rely on the authority of any individual making such telephonic request without the necessity of receipt of such written confirmation) and received by the Agent not later than twelve o’clock noon (12:00) (Philadelphia time) on the Business Day such Swing Line Loan is to be made, specifying in each case (i) the amount to be borrowed, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amountrequested borrowing date, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all date such Swing Line Loans exceeding Loan is to be repaid, if applicable (the “Swing Line Repayment Date”). The request for such Swing Line Loan shall be irrevocable. Provided that all applicable conditions precedent contained herein have been satisfied, the Swing Line Commitment. The Swing Line Lender shall Bank shall, not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to 4:00 p.m., Philadelphia time, on the Borrowing Date with respect to date specified in the Borrowers’ request for such Swing Line Loan, make such Swing Line Loan by crediting the Borrowers’ deposit account with the Swing Line Bank or as otherwise directed by the Borrowers.
(iii) The obligation of the Borrowers to repay the Swing Line Loans shall be evidenced by a promissory note of the Borrowers dated the date hereof, payable to the order of the Swing Line Bank in the principal amount of the Swing Line Commitment and substantially in the form of Exhibit A-2 (as amended, supplemented or otherwise modified from time to time, the “Swing Line Note”).
(iv) Swing Line Loans shall be repaid on the earlier of (1) the Termination Date, (2) the Swing Line Repayment Date for such Swing Line Loan or (3) the seventh day after the date such Swing Line Loan was made (any such date being the “Swing Line Conversion Date”). Unless the Borrowers shall have determined notified the Agent prior to 11:00 a.m., Philadelphia time, on such Swing Line Conversion Date that the Borrowers intend to repay such Swing Line Loan with funds other than the proceeds of a Revolver Loan, the Borrowers shall be deemed to have given notice to the Agent requesting the Banks to make Revolver Loans which shall earn interest at the Base Rate in effect on the Swing Line Conversion Date in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, and subject to satisfaction or waiver of the conditions specified in Section 4.2, the Banks shall, on the Swing Line Conversion Date, make Revolver Loans, which shall earn interest at the Base Rate, in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, the proceeds of which shall be applied directly by the Agent to repay the Swing Line Bank for such Swing Line Loan plus accrued interest thereon; and provided, further, that if for any reason the proceeds of such Revolver Loans are not received by the Swing Line Bank on the Swing Line Conversion Date in an aggregate amount equal to the amount of such Swing Line Loan plus accrued interest, the Borrowers shall reimburse the Swing Line Bank on the day immediately following the Swing Line Conversion Date, in same day funds, in an amount equal to the excess of the amount of such Swing Line Loan over the aggregate amount of such Revolver Loans, if any, received plus accrued interest thereon.
(v) In the event that the Borrowers shall fail to repay the Swing Line Bank as provided in this Section 2.1(c) in an amount equal to the amount required under Section 2.1(c), the Agent shall promptly notify each Bank of the unpaid amount of such Swing Line Loan and accrued interest thereon and of such Bank’s respective participation therein in an amount equal to such Bank’s pro rata share of such Swing Line Loan and accrued interest thereon (based on its Commitment Percentage). Each Bank shall make available to the Agent for payment to the Swing Line Bank an amount equal to its respective participation therein, in same day funds, at the office of the Agent specified in such notice, not later than 11:00 a.m., Philadelphia time, on the Business Day after the date the Agent notifies each Bank. In the event that any Bank fails to make available to the Agent the amount of such Bank’s participation in such unpaid amount as provided herein, the Swing Line Bank shall be entitled to recover such amount on demand from such Bank together with interest thereon at a rate per annum equal to the Federal Funds Effective Rate for each day during the period between the Swing Line Conversion Date and the date on which such Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the Agent its pro rata share of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to make available to the Agent its pro rata share of such unpaid amount on the Swing Line Conversion Date. The Agent shall distribute to each Bank which has paid all amounts payable by it under this Section 2.1(c) with respect to the unpaid amount of any Swing Line Loan, such Bank’s pro rata share of all payments received by the Agent from the Borrowers in repayment of such Swing Line Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has paid all amounts payable by it under this Section 2.1(c) shall have a direct right to repayment of such amounts from the Borrowers subject to the procedures for repaying Banks set forth in Sections 5 and/or 6this Section 2.1(c) and the provisions of Section 9.8.
(vi) In the event the Commitments are terminated in accordance with the terms hereof, as applicablethe Swing Line Commitment shall also be terminated automatically. In the event the Borrowers reduce the Commitments to less than the Swing Line Commitment, have not been satisfied and such conditions remain unsatisfied as the Swing Line Commitment shall immediately be reduced to an amount equal to the Commitments. In the event the Borrowers reduce the Commitments to less than the outstanding principal amount of the requested Swing Line Loans, the Borrowers shall immediately repay the amount by which the outstanding Swing Line Loans exceeds the Swing Line Commitment as so reduced plus accrued interest thereon.
(vii) At no time of the making of such Loanshall there be more than two outstanding Swing Line Loans. Each Swing Line Loan shall be due in an original principal amount of $100,000 or a whole multiple thereof.
(viii) The Borrowers shall have the right at any time and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of from time to time to prepay the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender mayLoans, in its sole discretionwhole or in part, give notice without premium or penalty (but in any event subject to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(hSection 2.18), (i) upon prior written, facsimile or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly telephonic notice to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and Bank given no later than 1:00 p.m., Philadelphia time, on the date specified in writing by of any proposed prepayment. Each notice of prepayment shall specify the Swing Line Lender notwithstanding: (i) whether Loan to be prepaid and the amount of to be prepaid, shall be irrevocable and shall commit the Borrowers to prepay such Mandatory Borrowing complies amount on such date, with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage thereon and any amounts paid by the Borrower pursuant to this owed under Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents2.18 hereof.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (West Pharmaceutical Services Inc)
Swing Line Loans. By telephonic notice, promptly followed (awithin one Business Day) Subject by the delivery of a confirming Borrowing Request, to CSFB on or before 2:00 p.m., New York time, on the terms and conditions hereofBusiness Day the proposed Swing Line Loan is to be made, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower may from time to time during the Swing Line Commitment Period. irrevocably request that Swing Line Loans (i) may be repaid made by CSFB in an aggregate minimum principal amount of $500,000 and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance an integral multiple of all $500,000. All Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall be made as Base Rate Loans and shall not be obligated entitled to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered converted into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line LoanLIBO Rate Loans. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as proceeds of the requested time of the making of such Loan. Each each Swing Line Loan shall be due and payable made available by CSFB, by its close of business on the day (Business Day telephonic notice is received by it as provided in this clause to the “Swing Line Maturity Date”) being Borrower by wire transfer to the earliest of account the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment Borrower shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, specified in its sole discretion, give notice to the Lenders and the Borrower that such outstanding therefor. If (i) any Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) outstanding for more than four Business Days or (j))ii) any Default shall occur and be continuing, in which case a borrowing of each Revolving Credit Loans made as ABR Advances Loan Lender (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender other than CSFB) irrevocably agrees to that it will, at the request of CSFB, make a Revolving Credit Loan pursuant (which shall initially be funded as a Base Rate Loan) in an amount equal to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount such Lender's Percentage of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all such Swing Line Loans then outstanding, outstanding (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans hereinafter referred to as the "Refunded Swing Line Loans"). On or before 2:00 p.m. (including accrued interest thereonNew York time) on the first Business Day following receipt by each Lender of a request to make Revolving Loans as provided in the preceding sentence, each Revolving Loan Lender shall deposit in an account specified by CSFB the amount so requested in same day funds and such funds shall be applied by CSFB to repay the Refunded Swing Line Loans. At the time the aforementioned Lenders make the above referenced Revolving Loans, CSFB shall be deemed to have made, (in consideration of the making of the Refunded Swing Line Loans), Revolving Loans in an amount equal to CSFB's Percentage (determined by reference to its Revolving Loan Commitment) of the product aggregate principal amount of its Commitment Percentage the Refunded Swing Line Loans. Upon the making (or deemed making, in the case of CSFB) of any Revolving Loans pursuant to this clause, the amount so funded shall become outstanding under such Revolving Loan Lender's Revolving Note and the outstanding balance of shall no longer be owed under the Swing Line Note. All interest payable with respect to any Revolving Loans made (eachor deemed made, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to in the product case of its Commitment Percentage and any amounts paid by the Borrower CSFB) pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities clause shall be unconditional and without regard appropriately adjusted to reflect the occurrence period of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the time during which CSFB had outstanding Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except Loans in respect of losseswhich such Revolving Loans were made. Each Revolving Loan Lender's obligation to make the Revolving Loans referred to in this clause shall be absolute and unconditional and shall not be affected by any circumstance, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to including (i) from the date any set-off, counterclaim, recoupment, defense or other right which such amount was due until the third day therefromLender may have against CSFB, the Federal Funds Effective Rate, and any Obligor or any Person for any reason whatsoever; (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by occurrence or continuance of any Default; (iii) any adverse change in the condition (financial or otherwise) of any Obligor; (iv) the acceleration or maturity of any Obligations or the termination of any Commitment after the making of any Swing Line Lender. The Administrative Agent shall distribute such interest payments Loan; (v) any breach of this Agreement or any other Loan Document by any Person; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account any of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lenderforegoing.
Appears in 1 contract
Swing Line Loans. (ai) Subject Notwithstanding any other provision of this Agreement to the terms contrary, in order to administer the revolving facility under Section 2.01(a) above in an efficient manner and conditions hereofto minimize the transfer of funds between the Agent and the Lenders, the Swing Line Lender agrees to shall make loans under this Agreement (each a “available Swing Line Loan” and, collectively, the “Swing Line Loans”) Loans to the Borrower from time at the election of Borrower prior to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line CommitmentTermination Date. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and pursuant hereto (i) if the Borrower to eliminate is not in compliance with all the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice conditions to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect making of Loans set forth in this Agreement, (ii) if after giving effect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each outstanding Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of Loans exceed the Swing Line Interest Period applicable theretoCommitment, or (iii) if after giving effect to such Swing Line Loan, the date on which the sum of all Revolving Credit Loans and Swing Line Commitment Loans then outstanding, plus LC Exposure exceeds the Aggregate Revolving Credit Commitments. Loans made pursuant to this Section 2.01(b) shall have been voluntarily terminated be limited to Loans bearing interest at the Base Rate or such other rate of interest as agreed upon by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(bii) On any Domestic Business DaySubject to the terms of this Agreement, during the period from the Closing Date to but excluding, the Termination Date, the Borrower may borrow, repay and reborrow Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Loans under this Section 2.01(b). Each repayment of a Swing Line Loan shall be funded in integral multiples of $100,000 or the unpaid amount of the Swing Line Loans outstanding. The minimum outstanding amount of Swing Line Loans shall be $100,000.
(iii) If the Borrower instructs the Swing Line Lender to debit its demand deposit account in an amount of any payment with respect to a borrowing of Revolving Credit Loans (provided that Swing Line Loan, or the Swing Line Lender otherwise receives repayment after 12:00 noon Atlanta time, on a Business Day, such notice payment shall be deemed received on the next Business Day.
(iv) The Borrower and each Lender which is or may become a party hereto acknowledge that all Swing Line Loans are to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made solely by all Lenders pro rata based on the Swing Line Lender to the Borrower, but that each Lender shall share the risk of loss with respect to such Loans in an amount equal to such Lender’s Commitment 's Percentage on the Domestic Business Day immediately succeeding the giving Share of such noticeSwing Line Loan. The proceeds Upon demand made by the Swing Line Lender, each Lender (including the Swing Line Lender) shall, according to its Percentage Share of each Mandatory Borrowing shall be remitted directly such Swing Line Loan, promptly provide to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall its purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) price therefor in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Share therein, in which case such Swing Line Loans (each, Loan shall be deemed from and after such date a “Swing Line Participation Amount”Loan made under Section 2.01(a). Each Lender shall also be liable for an amount equal to the product The obligation of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence so provide its purchase price to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies shall be absolute and agrees to hold harmless the Administrative Agent unconditional and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered shall not be affected by the Administrative Agent occurrence of an Event of Default or the Swing Line Lender, as the case may be, resulting from the gross negligence any other occurrence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedevent.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated from time to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless from the Swing Line Lender has entered into arrangements satisfactory to it and Availability Date through the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day day prior to the Borrowing Termination Date with respect make Swing Line Loans in Dollars to Borrower in such amounts as Borrower may request, provided that (i) after giving effect to such Swing Line Loan, shall have determined that (A) the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each aggregate Swing Line Loan Outstandings shall be due not exceed $15,000,000 and payable on (B) the day (the “Swing Line Maturity Date”) being the earliest aggregate principal outstanding amount of the last day of the Swing Line Interest Period applicable theretoall Committed Loans, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, Money Market Loans and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account plus the Letter of Credit Liabilities shall not exceed the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunderaggregate Commitments, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) without the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount consent of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative AgentLenders, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the no Swing Line Lender a participation in Loan may be made during the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence continuation of any Default or Event of Default and (iii) the Swing Line Lender has not given at least twenty-four hours prior notice to Borrower that availability under the Swing Line is suspended or terminated. Borrower may borrow, repay and reborrow under this Section. Unless notified to the compliance contrary by the Borrower with any of its obligations Swing Line Lender, borrowings under the Loan Documents.
(d) In furtherance Swing Line may be made in amounts which are integral multiples of Section 2.2(c), $1,000,000 upon each receipt telephonic request by a Lender Responsible Official of notice from the Administrative Agent, such Lender shall promptly make available Borrower made to the Administrative Agent not later than 1:00 P.M. (California local time), on the Domestic Business Day of the requested Swing Line Loan (which telephonic request shall be promptly confirmed in writing by telecopier). Promptly after receipt of such a request for a Swing Line Loan, the Administrative Agent shall provide telephonic verification to the Swing Line Lender that the requested Swing Line Loan is in conformity with this Section. Unless the Swing Line Lender otherwise agrees, each repayment of a Swing Line Loan shall be in an amount which is an integral multiple of $1,000,000. If Borrower instructs the Swing Line Lender to debit its demand deposit account at the Swing Line Lender in the amount of any payment with respect to a Swing Line Loan, or the Swing Line Lender otherwise receives repayment, after 3:00 p.m. (California local time), on a Domestic Business Day, such payment shall be deemed received on the next Domestic Business Day. The Swing Line Lender shall promptly notify the Administrative Agent of the Swing Loan Outstandings each time there is a change therein.
(b) The Swing Line Lender shall be responsible for submitting invoices to Borrower for such interest. The interest payable on Swing Line Loans shall be solely for the account of the Swing Line Lender its unless and until the Banks fund their participations therein pursuant to clause (d) of this Section.
(c) The Swing Line Participation Amount at Loans shall be payable on demand made by the office Swing Line Lender and in any event on the Termination Date.
(d) Upon the making of a Swing Line Loan, each Lender shall be deemed to have purchased from the Swing Line Lender a participation therein in an amount equal to that Lender's percentage of the Administrative Agent specified in Section 11.2, in lawful money aggregate Commitments times the amount of the United States and in immediately available fundsSwing Line Loan. The Administrative Agent shall deliver the payments Upon demand made by the Swing Line Lender, each Lender pursuant shall, according to the immediately preceding sentence such percentage, promptly provide to the Swing Line Lender promptly upon receipt thereof its purchase price therefor in like funds as receivedan amount equal to its participation therein. Each The obligation of each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and so provide its purchase price to the Swing Line Lender from shall be absolute and against any unconditional and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered shall not be affected by the Administrative Agent occurrence of a Default or Event of Default. Each Lender that has provided to the Swing Line Lender, as Lender the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the purchase price due for its participation in Swing Line LenderLoans shall thereupon acquire a pro rata participation, as the case may be), and such Lender shall pay interest to the Administrative Agent for extent of such payment, in the account claim of the Swing Line Lender from against Borrower for principal and interest and shall share, in accordance with that pro rata participation, in any principal payment made by Borrower with respect to such claim and in any interest payment made by Borrower (but only with respect to periods subsequent to the date such amount was due until Lender paid the Swing Line Lender its purchase price) with respect to such claim.
(e) In the event that the Swing Line Outstandings are in fullexcess of $10,000,000 on three consecutive Domestic Business Days then, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to next Domestic Business Day (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments unless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings below $10,000,000), Borrower shall request a Borrowing in an amount sufficient to reduce the Swing Line Outstandings below $10,000,000. In addition, upon receipt thereof any demand for payment of the Swing Line Outstandings by the Swing Line Lender (unless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings to $0), Borrower shall request a Borrowing in like funds an amount sufficient to repay all Swing Line Outstandings (and, for this purpose, the limitations as received.
(e) Whenever to the minimum amounts of Base Rate Borrowings set forth in Section 2.01 shall not apply). In each case, the Administrative Agent is reimbursed shall automatically provide the responsive Loans made by each Lender to the Swing Line Lender (which the Swing Line Lender shall then apply to the Swing Line Outstandings). In the event that Borrower fails to request a Borrowing within the time specified by Section 2.02 on any such date, the Administrative Agent may, but shall not be required to, without notice to or the consent of Borrower, cause Loans to be made by the Borrower for Lenders under their Commitments in amounts which are sufficient to reduce the account Swing Line Outstandings as required above. The conditions precedent set forth in Section 3.01 shall not apply to Loans to be made by the Lenders pursuant to the three preceding sentences. The proceeds of such Loans shall be paid directly to the Swing Line Lender for any payment in connection with application to the Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderOutstandings.
Appears in 1 contract
Samples: Multi Year Credit Agreement (Park Place Entertainment Corp)
Swing Line Loans. (a) Subject During the Commitment Period, subject to the terms and conditions hereofset forth herein, the Swing Line Lender agrees to may, in its discretion and in reliance upon the agreements of the other Lenders set forth in this Section 2.01(c) and Section 2.04, make revolving credit loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Parent Borrower from time to time during on any Business Day; provided, that (i) the aggregate principal amount of the Swing Line Commitment PeriodLoans shall not exceed ten percent (10%) of the Aggregate Committed Amount (the “Swing Line Committed Amount”), (ii) with respect to the Lenders collectively, the aggregate principal amount of Revolving Obligations shall not exceed the Aggregate Committed Amount and (iii) the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Swing Line Loans (i) shall be comprised solely of Base Rate Loans, and may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in . Immediately upon the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance making of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line each Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocablyto, and severally (hereby irrevocably and not jointly) unconditionally agrees to, purchase from the Swing Line Lender a participation interest in the outstanding such Swing Line Loans (including accrued interest thereon) Loan in an amount equal to the product of its such Lender’s Commitment Percentage and the outstanding balance of the thereof. No Swing Line Loans Loan shall remain outstanding for longer than five (each, a “Swing Line Participation Amount”)5) Business Days. Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the The Swing Line Lender its shall endeavor to (but be under no obligation to) promptly notify the Parent Borrower if it has suspended the availability of Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedLoans.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject During the Commitment Period, the Swing Line Lender agrees, subject to the terms and conditions hereofset forth herein and in reliance upon the agreements of the other Lenders set forth herein, the Swing Line Lender agrees to make revolving credit loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time on any Business Day; provided that (i) the aggregate principal amount of Swing Line Loans shall not exceed the lesser of (such lesser amount being referred to time during as the “Swing Line Availability”) (x) SEVENTY MILLION DOLLARS ($70,000,000) (as such amount may be increased or decreased in accordance with the provisions hereof, the “Swing Line Committed Amount”), and (y) the Revolving Commitment of the Swing Line Lender in its capacity as a Lender minus the outstanding principal amount of the Revolving Loans owing to the Swing Line Lender in its capacity as a Lender, (ii) with respect to the Lenders collectively, the aggregate principal amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed Amount, (iii) with regard to each Lender individually, such Lender’s Revolving Commitment PeriodPercentage of Revolving Obligations shall not exceed its respective Revolving Committed Amount, and (iv) the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Swing Line Loans (i) shall be comprised solely of Loans bearing interest based on the Base Rate or such other rate as may be agreed, in each case as provided in Section 2.08(a)(iii), and may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in . Immediately upon the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance making of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line each Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocablyto, and severally (hereby irrevocably and not jointly) unconditionally agrees to, purchase from the Swing Line Lender a participation interest in the outstanding such Swing Line Loans (including accrued interest thereon) Loan in an amount equal to the product of its such Lender’s Revolving Commitment Percentage and the outstanding balance of the thereof. No Swing Line Loans Loan shall remain outstanding for longer than ten (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents10) Business Days.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions hereofset forth herein, the each Swing Line Lender agrees to Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, shall make loans under this Agreement (each such loan, a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time on any Business Day during the Availability Period, to (i) in the case of Bank of America, any Borrower that is a U.S. Person or that is organized under the laws of Canada, which shall consist of Swing Line Loans denominated in Canadian Dollars, in an aggregate principal amount not to exceed the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereofCanadian Dollar Sublimit, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding case of Citibank N.A., any Borrower that is a U.S. Person or that is organized under the Aggregate Commitment Amountlaws of the United Kingdom, Germany, Ireland, Luxembourg, The Netherlands or any other Designated Borrower Jurisdiction that is a Participating Member State, which shall consist of Swing Line Loans denominated in Euro, in an aggregate principal amount not to exceed the Swing Line Euro Sublimit and (iii) in the case of Barclays Bank PLC, any Borrower that is a U.S. Person or that is organized under the laws of the United Kingdom, Germany, Ireland, Luxembourg, The Netherlands or any other Designated Borrower Jurisdiction that is a Participating Member State, which shall notconsist of Swing Line Loans denominated in Sterling, immediately in an aggregate principal amount not to exceed the Swing Line Sterling Sublimit; provided, however, that (x) after giving effect theretoto any Swing Line Loan, result (i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii) the Total Outstandings denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit, (iii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment and (iv) in the case of the Lender acting as the Swing Line Lender with respect to such Swing Line Loan (whether directly or through an Affiliate), unless such Lender shall agree otherwise in its sole discretion, such Lender’s Revolving Credit Exposure plus (without duplication) the aggregate principal amount of outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The issued by such Swing Line Lender shall not exceed such Lender’s Commitment, (y) the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (z) no Swing Line Lender shall be obligated under any obligation to make any Swing Line Loan at if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan denominated in (i) Canadian Dollars shall be a time when any Canadian Prime Rate Loan, (ii) Euro shall be a Euro Overnight Rate Loan and (iii) Sterling shall be a Sterling Overnight Rate Loan. Immediately upon the making of a Swing Line Loan by a Swing Line Lender, each other Lender shall be in default of its obligations under this Agreement unless deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s a risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and such Lender’s Pro Rata Share times the outstanding balance amount of the such Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan DocumentsLoan.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement
Swing Line Loans. (a) Subject to the terms and conditions hereof, First Bank shall cause the Swing Line Lender agrees Loans to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) be made to the Borrower Borrowers at any time and from time to time during the Term hereof upon timely notice (a “Swing Line Commitment Period. Borrowing Notice”) to First Bank, either in writing signed by the Borrower Representative (including any such notice by facsimile transmission) or orally, provided it is promptly confirmed in writing signed by the Borrower Representative to First Bank, specifying: (1) the desired principal amount of the Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereofLoan(s), (ii2) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment AmountBorrower(s) to whom such Swing Line Loan(s) are to be made, and (iii3) the date on which the Loan proceeds are to be made available to the applicable Borrower(s), which shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all be a Business Day. Each Swing Line Loans exceeding Borrowing Notice must be received by First Bank not later than 10:00 a.m. (St. Louis time) on the Business Day on which a Swing Line CommitmentLoan is to be made. The Swing Line Lender A Borrowing Notice shall not be obligated required in connection with a Loan made to make cover any overdraft in Virbac’s operating account on a day-to-day basis as set forth herein. A Borrowing Notice shall not be revocable by Borrowers. Subject to the terms and conditions hereof, provided that First Bank has received the Borrowing Notice, First Bank shall (unless First Bank determines that any applicable condition specified in Section 4 has not been satisfied) pay to Borrowers, or any of them, the Loan proceeds of any new Swing Line Loan at in immediately available funds not later than 2:00 p.m. (St. Louis time) on the Business Day specified in said Borrowing Notice. Each of the Borrowers hereby authorizes First Bank to reasonably rely on telephonic, telegraphic, telecopy, telex or written instructions of any person identifying himself as a time when person authorized to request a Swing Line Loan or make a repayment hereunder, and on any Lender signature which First Bank believes to be genuine, and Borrowers shall be bound thereby in default of the same manner as if such person were actually authorized or such signature were genuine. Borrowers further request and authorize First Bank, in its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory sole and absolute discretion, to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if to Borrowers hereunder at the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, end of each day in which Borrowers shall have determined that the conditions set forth an overdraft (negative ledger balance) in Sections 5 and/or 6, as applicable, have not been satisfied Virbac’s operating account (Account No. 9800801785) with First Bank after crediting all deposits received in immediately available funds and debiting all withdrawals made and checks presented against such conditions remain unsatisfied account and honored by First Bank as of such date and after funding any advances to or receiving any collected balances on such day from the requested time “zero balance” operating accounts of the making of PM Resources (Account No. 9800802535), and Virbac AH (Account No. 9821908926) with First Bank to cover withdrawals made and checks presented on such Loan. Each date and after crediting all deposits received in immediately available funds on such date, which Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with overdraft without any other request or authorization therefor from Borrowers and without notice to Borrowers. Similarly, Borrowers request that First Bank apply any collected balances (after funding advances to or receiving collections from the minimum “zero balance” accounts of PM Resources and Virbac AH) in excess of a mutually predetermined amount for Loans otherwise required hereunder, (ii) whether remaining at the end of any condition specified day in Section 6 is then unsatisfied, (iii) whether a Default or an Event Virbac’s operating account to the repayment of Default then exists, (iv) the Borrowing Date principal balance of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then Borrowers’ Obligations outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocablyfirst as Swing Line Loans, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (eachsecond, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoidedas Revolving Credit Loans, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available Notes. Borrowers also hereby agree jointly and severally to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States indemnify First Bank and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold First Bank harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgmentsclaims, demands, damages, liabilities, losses, costs and expenses resulting from any failure on the part (including, without limitation, Attorneys’ Fees) relating to or arising out of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with the acceptance of instructions for making Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lenderor repayments hereunder.
Appears in 1 contract
Samples: Loan Agreement (Virbac Corp)
Swing Line Loans. (a) Subject to the terms and conditions hereofset forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swing Line Swingline Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) Swingline Loans to the Borrower from time to time during the Swing Line Commitment Revolving Availability Period. Swing Line Loans , denominated in dollars, in an aggregate principal amount at any time outstanding that will not result in (i) may be repaid and reborrowed in accordance with the provisions hereof, outstanding Swingline Loans of the Swingline Lender exceeding its Swingline Commitment or (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure aggregate U.S. Revolving Exposures exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in aggregate U.S. Revolving Commitments; provided that the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Swingline Lender shall not be obligated required to make any Swing Line a Swingline Loan at a time when (x) to refinance an outstanding Swingline Loan or (y) if any Lender shall be in default of its obligations under this Agreement unless is at that time a Defaulting Lender and after giving effect to Section 2.22(a)(iv), any Defaulting Lender Fronting Exposure remains outstanding. Within the Swing Line Lender has entered into arrangements satisfactory to it foregoing limits and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice subject to the Swing Line Lender terms and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Swingline Lender of such request (i) by telephone (confirmed in Sections 5 and/or 6writing), as applicablenot later than 2:00 p.m., have Local Time, or, if agreed by the Swingline Lender, 2:00 p.m., Local Time (in the case of a Swingline Loan denominated in dollars) or (ii) by facsimile or other electronic transmission (confirmed by telephone), not been satisfied later than 2:00 p.m., Local Time, or, if agreed by the Swingline Lender, 2:00 p.m., Local Time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and such conditions remain unsatisfied as shall specify the requested date (which shall be a Business Day), the amount of the requested time of Swingline Loan and (x) if the making of such Loan. Each Swing Line Loan shall funds are not to be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant credited to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an a general deposit account of the Borrower maintained with the Swing Line Swingline Lender.
(b) On any Domestic Business Day, the Swing Line location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender mayshall make each Swingline Loan available to the Borrower by means of a credit to the general deposit accounts of the Borrower maintained with the Swingline Lender or such other deposit account identified by Borrower (or, in its sole discretionthe case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), give notice by remittance to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h)applicable Issuing Bank) by 3:00 p.m., (i) or (j))Local Time, in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving requested date of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Swingline Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon The Swingline Lender may by written notice given to the Administrative Agent not later than 1:00 p.m., Local Time, on any Business Day require the U.S. Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which U.S. Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each U.S. Revolving Lender, specifying in such notice the currency and such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each U.S. Revolving Lender hereby absolutely and unconditionally agrees, upon receipt by a Lender of notice from as provided above, to pay to the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office Swingline Lender, such Lender’s Applicable Percentage of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as receivedsuch Swingline Loan or Swingline Loans. Each U.S. Revolving Lender hereby indemnifies acknowledges and agrees that its obligation to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay acquire participations in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Swingline Loans and such payment relates to an amount previously paid by a Lender pursuant to this Sectionparagraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the Administrative Agent will promptly remit occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment to such Lender.shall be made without any offset, abatement, withholding or reduction whatsoever. Each U.S. Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds in the
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by By telephonic notice to the Swing Line Lender and on or before 12:00 noon on a Business Day (followed (within one Business Day) by the delivery of a confirming Borrowing Request), the Borrower no later than one Domestic Business Day prior may from time to the Borrowing Date with respect to such time irrevocably request that Swing Line Loan, Loans be made by the Swing Line Lender in an aggregate minimum principal amount of $500,000 and an integral multiple of $500,000. All Swing Line Loans shall have determined that the conditions set forth in Sections 5 and/or 6, be made as applicable, have Base Rate Loans and shall not been satisfied and such conditions remain unsatisfied as be entitled to be converted into LIBO Rate Loans. The proceeds of the requested time of the making of such Loan. Each each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of made available by the Swing Line Interest Period applicable thereto, Lender to the date on which Borrower by wire transfer to the Swing Line Commitment account the Borrower shall have been voluntarily terminated specified in its notice therefor by the Borrower in accordance with Section 2.6, and close of business on the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether Business Day telephonic notice is received by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On If (i) any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be outstanding for more than four Business Days, (ii) any Swing Line Loan is or will be outstanding on a date when the Borrower requests that a Revolving Loan be made, or (iii) any Default shall occur and be continuing, then each Lender (other than the Swing Line Lender) irrevocably agrees that it will, automatically and without notice from the Swing Line Lender, make a Revolving Loan (which shall initially be funded with as a borrowing Base Rate Loan) in an amount equal to such Lender's Percentage of the aggregate principal amount of all such Swing Line Loans then outstanding (such outstanding Swing Line Loans hereinafter referred to as the "REFUNDED SWING LINE LOANS"). On or before 11:00 a.m. on the first Business Day following receipt by each Lender of a request to make Revolving Credit Loans (as provided that in the preceding sentence, each Lender shall deposit in an account specified by the Swing Line Lender the amount so requested in same day funds and such notice funds shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made applied by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding the Refunded Swing Line LoanLoans. Each Lender irrevocably agrees to At the time the Lenders make a the above referenced Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by Loans the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereundershall be deemed to have made, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount consideration of the Commitments at such time.
(c) Upon each receipt by a Lender making of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Refunded Swing Line Lender a participation in the outstanding Swing Line Loans, Revolving Loans (including accrued interest thereon) in an amount equal to the product Swing Line Lender's Percentage of its Commitment Percentage and the outstanding balance aggregate principal amount of the Refunded Swing Line Loans. Upon the making (or deemed making, in the case of the Swing Line Lender) of any Revolving Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoidedclause, or must otherwise the amount so funded shall become outstanding under such Lender's Revolving Note and shall no longer be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations owed under the Loan Documents.
Swing Line Note. All interest payable with respect to any Revolving Loans made (d) In furtherance of Section 2.2(c)or deemed made, upon each receipt by a Lender of notice from in the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account case of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender Lender) pursuant to this clause shall be appropriately adjusted to reflect the immediately preceding sentence to period of time during which the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the had outstanding Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except Loans in respect of losseswhich such Revolving Loans were made. Each Lender's obligation to make the Revolving Loans referred to in this clause shall be absolute and unconditional and shall not be affected by any circumstance, liabilities including (i) any set-off, counterclaim, recoupment, defense or other obligations suffered by the Administrative Agent or right which such Lender may have against the Swing Line Lender, as the case may be, resulting from the gross negligence any Obligor or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent any Person for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and any reason whatsoever; (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by occurrence or continuance of any Default; (iii) any adverse change in the condition (financial or otherwise) of any Obligor; (iv) the acceleration or maturity of any Obligations or the termination of any Commitment after the making of any Swing Line Lender. The Administrative Agent shall distribute such interest payments Loan; (v) any breach of any Loan Document by any Person; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account any of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lenderforegoing.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by By telephonic notice to the Swing Line Lender and the Borrower no later than one Domestic on or before 12:00 noon, New York time, on a Business Day prior (followed (within one Business Day) by the delivery of written confirmation of such request, which request shall be in a form satisfactory to the Borrowing Date with respect to Agent and shall include (i) the party making the borrowing thereunder, including necessary account information, and (ii) the aggregate principal amount of such proposed Swing Line Loan), any Borrower may from time to time irrevocably request that Swing Line Loans be made by the Swing Line Lender in an aggregate minimum principal amount of $500,000 and an integral multiple of $500,000. All Swing Line Loans shall have determined that be made in U.S. Currency pursuant to the conditions set forth in Sections 5 and/or 6, as applicable, have Base Rate Option and shall not been satisfied and such conditions remain unsatisfied as be entitled to be converted into Loans under the LIBO Rate Option. The proceeds of the requested time of the making of such Loan. Each each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of made available by the Swing Line Interest Period applicable thereto, Lender to such Borrower by wire transfer to the date on which the Swing Line Commitment account such Borrower shall have been voluntarily terminated specified in its notice therefor by the Borrower in accordance with Section 2.6, and close of business on the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether Business Day telephonic notice is received by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, if such notice is received by the Swing Line Lender mayon or before 12:00 noon, in its sole discretion, give notice to the Lenders and the Borrower that New York time on such outstanding date.
(i) any Swing Line Loan shall be outstanding for more than four Business Days, (ii) any Swing Line Loan is or will be outstanding on a date when the applicable Borrower requests that a Revolving Credit Loan be made, or (iii) any Potential Default shall occur and be continuing, then each Lender (other than the Swing Line Lender) irrevocably agrees that it will make a Revolving Credit Loan (which shall initially be funded with under the Base Rate Option) in an amount equal to such Lender's percentage of the aggregate principal amount of all such Swing Line Loans then outstanding (such outstanding Swing Line Loans hereinafter referred to as the "Refunded Swing Line Loans"). On or before 11:00 a.m. on the first Business Day following receipt by each Lender of a borrowing of request to make Revolving Credit Loans (as provided that in the preceding sentence, each Lender shall deposit in an account specified by the Swing Line Lender the amount so requested in same day funds and such notice funds shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made applied by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding the Refunded Swing Line LoanLoans. Each Lender irrevocably agrees to At the time the Lenders make a the above referenced Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by Loans the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereundershall be deemed to have made, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount consideration of the Commitments at such time.
(c) Upon each receipt by a Lender making of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Refunded Swing Line Lender a participation in the outstanding Swing Line Loans, Revolving Credit Loans (including accrued interest thereon) in an amount equal to the product Swing Line Lender's percentage of its Commitment Percentage and the outstanding balance aggregate principal amount of the Refunded Swing Line Loans. Upon the making (or deemed making, in the case of the Swing Line Lender) of any Revolving Credit Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoidedclause, or must otherwise the amount so funded shall become outstanding under such Lender's Revolving Credit Note and shall no longer be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations owed under the Loan Documents.
Swing Line Note. All interest payable with respect to any Revolving Credit Loans made (d) In furtherance of Section 2.2(c)or deemed made, upon each receipt by a Lender of notice from in the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account case of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender Lender) pursuant to this clause shall be appropriately adjusted to reflect the immediately preceding sentence to period of time during which the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the had outstanding Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except Loans in respect of losseswhich such Revolving Credit Loans were made. Each Lender's obligation to make the Revolving Credit Loans referred to in this clause shall be absolute and unconditional and shall not be affected by any circumstance, liabilities including (i) any set-off, counterclaim, recoupment, defense or other obligations suffered by the Administrative Agent or right which such Lender may have against the Swing Line Lender, as the case may beXxxxxxx-Xxxxxx, resulting from the gross negligence any of its Subsidiaries, or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent any other Person for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and any reason whatsoever; (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by occurrence or continuance of any Potential Default or Event of Default; (iii) any adverse change in the condition (financial or otherwise) of any Borrower or any Subsidiary of Xxxxxxx-Xxxxxx; (iv) the acceleration or maturity of any Obligations or the termination of any Commitment after the making of any Swing Line Lender. The Administrative Agent shall distribute such interest payments Loan; (v) any breach of any Loan Document by any Person; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account any of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lenderforegoing.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereofset forth in this Agreement, the Swing Line Lender Bank agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) Loans to the Borrower Parent until the Termination Date in such amounts as the Parent may from time to time during request; provided, however, that (i) the aggregate principal amount of all -------- ------- Swing Line Loans shall not exceed the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereofSublimit, (ii) the Outstanding Obligations of each Bank shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate not exceed such Bank's Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance Outstanding Obligations of all Banks shall not exceed the combined Commitments at any time. This is a revolving credit and, subject to the foregoing and the other terms and conditions hereof, the Parent may borrow, prepay and reborrow Swing Line Loans exceeding as set forth herein without premium or penalty; provided, however, that Swing Line Bank may terminate or suspend the Swing Line Commitment. The Swing Line Lender shall not be obligated to make at any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by sole discretion upon notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwiseParent. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice a rate equal to the Lenders rate applicable to Base Rate Loans and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such timeDollars.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Each Swing Line Lender Loan shall bear interest at a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount fluctuating rate per annum equal to the product rate of its Commitment Percentage interest payable on Base Rate Loans and the outstanding balance interest shall be payable upon demand of the Swing Line Loans (each, a “Bank and on the Termination Date. The Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities Bank shall be unconditional and without regard to responsible for invoicing the occurrence of any Default Parent (or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the notifying Administrative Agent to so invoice the Parent) for such interest. The interest payable on Swing Line Loans is solely for the account of the Swing Line Lender its Bank, except following any funding of a risk participation under clause (f) below.
(d) The Parent shall repay each Swing Line Participation Amount Loan on the earliest of (i) the fifth Business Day after it is made, (ii) upon demand made by Swing Line Bank and (iii) the Termination Date. The Parent shall repay the principal amount of each Swing Line Loan by payment directly to Swing Line Bank or by Swing Line Bank debiting the Parent's deposit account at Swing Line Bank not later than 8:00 a.m. San Francisco time for payments hereunder. If the office conditions precedent set forth in Section 5.2 can be satisfied, the Parent may request a Borrowing ----------- of Committed Loans to repay Swing Line Bank pursuant to Section 2.1, or, ----------- failing to make such request, the Parent shall be deemed to have requested a Borrowing of Base Rate Loans on such payment date pursuant to subsection (f) below. Swing Line Bank shall promptly notify Administrative Agent of each Swing Line Loan and each payment thereof.
(e) If the Parent fails to timely make any principal of or interest payment on any Swing Line Loan, Swing Line Bank shall notify the Administrative Agent specified in Section 11.2, in lawful money of such fact and the United States and in immediately available fundsunpaid amount. The Administrative Agent shall deliver the payments made promptly notify each Bank of its Pro Rata Share of such amount by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received8:30 a.m. (San Francisco time). Each Lender hereby indemnifies and agrees Bank shall make funds in an amount equal to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part its Pro Rata Share of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest available to the Administrative Agent at the Administrative Agent's Payment Office not later than the 11:00 a.m. (San Francisco time) for payments hereunder on the account following Business Day. The obligation of each Bank to make such payment shall be absolute and unconditional and shall not be affected by the occurrence of an Event of Default or any other occurrence or event. Any such payment shall not relieve or otherwise impair the obligation of the Parent to repay the Swing Line Lender from Bank for any amount of Swing Line Loans, together with interest as provided herein.
(f) If the conditions precedent set forth in Section 5.2 can be ----------- satisfied on any date the Parent is obligated to, but fails to, repay a Swing Line Loan, the funding by Banks pursuant to the previous subsection shall be deemed to be a Borrowing of Base Rate Loans (without regard to the minimum amount therefor) deemed requested by the Parent. If the conditions precedent set forth in Section 5.2 cannot be satisfied on the date the ----------- Parent is obligated to make, but fails to make, such amount was due until paid payment, the funding by Banks pursuant to the previous subsection shall be deemed to be a funding by each Bank of its participation in fullsuch Swing Line Loan, on and each Bank making such funding shall thereupon acquire a pro rata participation, to the unpaid portion thereofextent of its payment, in the claim of Swing Line Bank against the Parent in respect of such payment and shall share, in accordance with that pro rata participation, in any payment made by the Parent with respect to such claim. Any amounts made available by a Bank under its risk participation shall be payable by the Parent upon demand of Administrative Agent, and shall bear interest at a rate of interest per annum, whether before or after judgment, annum equal to (i) from the date such amount was due until Base Rate plus the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate Applicable Margin plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Apw LTD)
Swing Line Loans. (a) Subject to and upon the terms and conditions hereofherein set forth (including the limitation set forth in Section 2.01), the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” andto Borrower, collectively, the “Swing Line Loans”) to the Borrower from time to time during prior to the Maturity Date, Swing Line Loans for periods of up to ninety (90) days in an aggregate principal amount outstanding at any time not to exceed the Swing Line Commitment Periodthen in effect. Borrower shall be entitled to repay and reborrow Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amountprovisions, and subject to the limitations, set forth herein (iii) shall not, immediately after giving effect thereto, result including the limitation set forth in the Section 2.01). The aggregate outstanding principal balance amount of all each Swing Line Loans exceeding Loan shall be not less than $100,000 or a greater integral multiple of $100,000.
(b) Each Swing Line Loan shall be made as a Swing Rate Advance.
(c) Whenever Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line CommitmentLender (with a copy to the Administrative Agent, unless the Administrative Agent is also the Swing Line Lender) prior written notice (or telephonic notice promptly confirmed in writing) of such Swing Line Borrowing (each a "Swing Line Borrowing Notice") prior to 1:00 P.M. (Atlanta, Georgia time) on the date of such Swing Line Borrowing. The Each Swing Line Borrowing Notice shall specify the aggregate principal amount of the Swing Line Borrowing, the date of such Swing Line Borrowing (which shall be a Business Day) and the interest period to be applicable thereto. Prior to 2:00 P.M. (Atlanta, Georgia time) on such date, the Swing Line Lender shall not be obligated furnish Borrower (with a copy to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement the Administrative Agent, unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate Administrative Agent is also the Swing Line Lender’s risk ) with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if quotation of the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date interest rate being offered with respect to such Swing Line LoanBorrowing (the "Swing Rate Quote") by telephone (promptly confirmed in writing) or by facsimile transmission. Borrower shall immediately inform the Swing Line Lender (with a copy to the Administrative Agent, unless the Administrative Agent is also the Swing Line Lender) of its decision as to whether to accept the Swing Rate Quote and to confirm the Swing Line Borrowing (which may be done by telephone, promptly confirmed in writing, and which decision shall have determined that be irrevocable).
(d) Borrower's obligations to pay the conditions set forth in Sections 5 and/or 6principal of, as applicableand interest on, have not been satisfied and such conditions remain unsatisfied as the Swing Line Loans shall be evidenced by the records of the requested time of Administrative Agent and the making Swing Line Lender and by the Swing Line Note payable to the Swing Line Lender (or the assignor of such Loan. Each Swing Line Lender) completed in conformity with this Agreement.
(e) The outstanding principal amount under each Swing Line Loan shall be due and payable in full on the day (the “Swing Line Maturity Date”.
(f) being At any time on the earliest of the last day request of the Swing Line Interest Period applicable theretoLender, each Syndicated Lender other than the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated purchase a participating interest in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product its Pro Rata Share (based upon on its respective Syndicated Loan Commitment) of its Commitment Percentage and the outstanding balance of the such Swing Line Loans (eachLoans, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure shall furnish each Syndicated Lender with a certificate evidencing such participating interest. Such purchase shall be made on the part third Business Day after such request is made; provided, however, that unless an Event of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender Default has occurred and is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from continuing on the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefromrequest is made, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.purchase of
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereofhereof and provided that no Event of Default shall have occurred and be continuing, at its sole discretion Firstar may make swing line loans to the Swing Line Lender agrees to make loans under this Agreement Borrower (each individually, a “"Swing Line Loan” and, collectively, "; collectively the “"Swing Line Loans”") to the Borrower from time to time during the Swing Line Revolving Commitment Period. Swing Line Loans Period in an aggregate principal amount at any one time outstanding not to exceed FIVE MILLION DOLLARS ($5,000,000), provided, however, that (i) may be repaid and reborrowed in accordance with regard to Firstar individually, the provisions hereof, (ii) sum of Firstar's share of outstanding Revolving Loans plus Firstar's LOC Commitment Percentage of LOC Obligations shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment not exceed Firstar's Revolving Committed Amount, and (iiiii) shall notwith regard to the Lenders collectively, immediately after giving effect thereto, result in the sum of the aggregate amount of outstanding principal balance of all Swing Line Loans exceeding plus Revolving Loans plus the aggregate amount of Commercial Paper Obligations plus the aggregate amount of LOC Obligations shall not exceed the Aggregate Revolving Committed Amount (as such aggregate maximum amount may be reduced from time to time as provided herein). Amounts borrowed under this Section 3.4 may be repaid and, through but excluding the Revolving Termination Date, reborrowed. All Swing Line Commitment. The Swing Line Lender Loans shall be made as Prime Rate Loans and shall not be obligated entitled to make any Swing Line Loan at a time when any Lender be converted into Eurodollar Loans. The Borrower shall give Firstar irrevocable notice (which notice must be in default received by Firstar prior to 2:00 P.M. (Milwaukee, Wisconsin time) on the date of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and requested borrowing specifying the Borrower to eliminate amount of the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such requested Swing Line Loan. The Swing Line Lender will not make a proceeds of any approved Swing Line Loan if the Administrative Agent, or any Lender will be made available by notice Firstar to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds office of Swing Line Loans at its office designated in Section 11.2 Firstar by crediting such proceeds to an the account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at office with such timeproceeds.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. Notwithstanding the notice and minimum amount requirements set forth in Section 2.1(b) (abut subject to the second proviso of this sentence) Subject to but otherwise in accordance with the terms and conditions hereof, the Swing Line Lender agrees to make loans under of this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business DayAgreement, the Swing Line Lender may, in its sole discretiondiscretion and without conferring with the Lenders, give notice make Revolving Loans in U.S. Dollars to the Lenders Borrowers in an amount as otherwise requested by the Borrowers (each a "Swing Line Loan"); provided that the aggregate amount of all outstanding advances made pursuant to this Section 2.4(e) shall not exceed $7,500,000; provided further that the advance of Swing Line Loans by the Swing Line Lender shall not reduce the Swing Line Lender's obligation to lend its Applicable Percentage of the Revolving Loans made pursuant to Section 2.1. The Borrowers acknowledge and agree that the making of such Swing Line Loans shall, in each case, be subject in all respects to the provisions of this Agreement as if they were Revolving Loans covered by an Advance Request including, without limitation, the limitations set forth in Section 2.1 and the Borrower requirements that the applicable provisions of Section 6.1 (in the case of Swing Line Loans made on the Closing Date) and Section 6.2 be satisfied. Accordingly, the Swing Line Lender shall not make any Swing Line Loan if (i) the Swing Line Lender shall have received written notice from any Lender that one or more of the applicable conditions precedent set forth in Sections 6.1 (with respect to the initial Loan hereunder) or 6.2 (with respect to any Loan after the initial Loan hereunder) hereof will not be satisfied on the requested funding date of the applicable Borrowing or (ii) the Swing Line Lender has actual knowledge that the requested Loan would exceed the limitations set forth in Section 2.1 on the funding date. All actions taken by the Swing Line Lender pursuant to the provisions of this Section 2.4(e) shall be conclusive and binding on the Borrowers and the Lenders absent the Swing Line Lender's gross negligence or willful misconduct. Swing Line Loans made pursuant to this Section 2.4(e) to the Borrowers shall be Base Rate Loans and, prior to the repayment of a Swing Line Loan pursuant to Section 2.4(e), interest on such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit and Security Agreement (Gerber Scientific Inc)
Swing Line Loans. (a) Subject In addition to the other options available to Borrower hereunder, up to $80,000,000 shall be available for Swing Line Loans subject to the following terms and conditions conditions. Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.10 hereof, . All Swing Line Loans shall bear interest at the ABR Rate. In no event shall the Swing Line Lender agrees be required to make loans under this Agreement (each fund a “Swing Line Loan” and, collectively, Loan if it would increase the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans sum of (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Percentage of the total aggregate outstanding Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan Loans hereunder, plus (ii) its Percentage of Facility Letter of Credit Obligations, plus (iii) its other outstanding Loans (other than Competitive Bid Loans) to an amount in excess of its Commitment or if it would cause the Administrative Agent, or any Lender by notice Allocated Facility Amount to exceed the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such LoanAggregate Commitment. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated paid in full by the Borrower in accordance with Section 2.6, and on or before the date on which fifth (5th) day after the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Borrowing Date for such Swing Line Loan shall bear interest at the Negotiated Rate applicable theretoLoan. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business DayIn addition, the Swing Line Lender may, (i) may at any time in its sole discretion, give notice discretion with respect to the Lenders and the Borrower that such any outstanding Swing Line Loan, or (ii) shall on the fifth (5th) day after the Borrowing Date of any Swing Line Loan, require each Lender (including the Swing Line Lender) to make a Loan in the amount of such Lender’s Percentage of such Swing Line Loan (including, without limitation, any interest accrued and unpaid thereon), for the purpose of repaying such Swing Line Loan. Not later than noon (Chicago time) on the date of any notice received pursuant to this Section 2.14 (provided such notice is given by 10:00 A.M. Chicago time), each Lender shall make available its required Loan, in funds immediately available in Chicago to the Administrative Agent at its address specified pursuant to Article XIV. Revolving Loans made pursuant to this Section 2.14 shall initially be ABR Loans and thereafter may be continued as ABR Loans or converted into LIBOR Loans in the manner provided in Section 2.11 and subject to the other conditions and limitations set forth in this Article II. Unless a Lender shall have notified the Swing Line Lender, prior to its making any Swing Line Loan, that any applicable condition precedent set forth in Sections 5.1 or 5.2 had not then been satisfied, such Lender’s obligation to make Loans pursuant to this Section 2.14 to repay Swing Line Loans shall be funded with a borrowing of Revolving Credit Loans unconditional, continuing, irrevocable and absolute and shall not be affected by any circumstances, including, without limitation, (provided that a) any setoff, counterclaim, recoupment, defense or other right which such notice shall be deemed to Lender may have been automatically given upon against the Administrative Agent, the Swing Line Lender or any other Person, (b) the occurrence or continuance of a Default or an Event of Default under Sections 9.1(h)Unmatured Default, (ic) any adverse change in the condition (financial or otherwise) of the Borrower, or (j))d) any other circumstances, in which case a borrowing happening or event whatsoever. In the event that any Lender fails to make payment to the Administrative Agent of Revolving Credit Loans made as ABR Advances (each such borrowingany amount due under this Section 2.14, a “Mandatory Borrowing”), the Administrative Agent shall be made by all Lenders pro rata based on each entitled to receive, retain and apply against such Lender’s Commitment Percentage on obligation the Domestic Business Day immediately succeeding principal and interest otherwise payable to such Lender hereunder until the giving Administrative Agent receives such payment from such Lender or such obligation is otherwise fully satisfied. In addition to the foregoing, if for any reason any Lender fails to make payment to the Administrative Agent of any amount due under this Section 2.14, such notice. The proceeds of each Mandatory Borrowing Lender shall be remitted directly deemed, at the option of the Administrative Agent, to have unconditionally and irrevocably purchased from the Swing Line Lender to repay such outstanding Lender, without recourse or warranty, an undivided interest and participation in the applicable Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunderpayment not made by such Lender, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of and such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time interest and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice participation may be recovered from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, together with interest thereon at the Federal Funds Effective Rate for each day during the period commencing on the date of demand and severally (and not jointly) from ending on the Swing Line Lender a participation in the outstanding date such amount is received. Swing Line Loans may be outstanding for a maximum of ten (including accrued interest thereon10) days during any calendar month. On the Termination Date, the Borrower shall repay in an amount equal to the product of its Commitment Percentage and full the outstanding principal balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan DocumentsLoans.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement on a revolving credit basis to the Borrower from time to time from and including the Closing Date to but excluding the Revolving Loan Commitment Expiration Date (each a “Swing Line Loan,” and, and collectively, the “Swing Line Loans”) in accordance with the terms of this Agreement; provided, after giving effect to the Borrower from time to time during the making of any Swing Line Commitment Period. Loan, in no event shall (i) the then existing aggregate outstanding principal amount of Swing Line Loans exceed $5,000,000 (i“Swing Line Sublimit”) at any time or (ii) the sum of (A) the aggregate principal amount of all Revolving Loans outstanding (other than Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing the Issuing Bank for any amount drawn under any Letter of Credit, but not yet so applied), (B) the aggregate principal amount of all Swing Line Loans outstanding, (C) the aggregate Letter of Credit Amount of all Letters of Credit outstanding, and (D) the aggregate amount of unreimbursed drawings under all Letters of Credit, exceed the Aggregate Revolving Loan Commitment at any time. Amounts borrowed pursuant to this Section 2.21 may be repaid and reborrowed in accordance with during the provisions hereof, period commencing on the Closing Date to but excluding the Revolving Loan Commitment Expiration Date.
(iib) All Swing Line Loans shall not, immediately after giving effect thereto, result in be Base Rate Loans. The Swing Line Lender’s obligation to make Swing Line Loans pursuant to this Section 2.21 shall expire on the Aggregate Credit Exposure exceeding the Aggregate Revolving Loan Commitment Amount, Expiration Date and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding and all other amounts owed hereunder with respect to the Swing Line CommitmentLoans shall be paid in full no later than such date. Swing Line Loans shall be made in an aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess of that amount, or such other amounts acceptable to the Swing Line Lender in its sole discretion.
(c) The Swing Line Lender shall maintain in its internal records an account or accounts evidencing the Indebtedness hereunder of the Borrower to the Swing Line Lender, Table of Contents including the amounts of the Swing Line Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on the Borrower, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect the Borrower’s Obligations in respect of any Swing Line Loans; provided further, in the event of any inconsistency between the Register and the Swing Line Lender’s records, the recordations in the Register shall govern. If so requested by the Swing Line Lender by written notice to the Borrower (with a copy to the Agent), the Borrower shall execute and deliver to such Lender a Swing Line Note substantially in the form of Exhibit A-2 attached hereto (a “Swing Line Note”) to evidence the Swing Line Lender’s Swing Line Loans.
(d) Whenever the Borrower desires that the Swing Line Lender make a Swing Line Loan, the Borrower shall give the Swing Line Lender (with a copy to the Agent) irrevocable written notice, substantially in the form of a Borrowing Notice (which notice must be received by the Agent prior to 12:00 noon, Los Angeles time, on the Business Day that is the proposed borrowing date).
(e) The Swing Line Lender shall make the amount of its Swing Line Loan available to the Agent not later than 2:00 p.m., Los Angeles time, on the Business Day that is the proposed borrowing date by wire transfer of same day funds in Dollars by wiring such amount to such account as the Agent shall specify. Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, the Agent shall make the proceeds of such Swing Line Loans available to the Borrower on the proposed borrowing date by causing an amount of same day funds in Dollars equal to the proceeds of all such Swing Line Loans received by the Agent from the Swing Line Lender to be credited to the account of the Borrower with the Agent, or to such other account as may be designated in writing to the Agent by the Borrower. Notwithstanding the foregoing, the Swing Line Lender may, but shall not be obligated to, make Swing Line Loans at any time that one or more of the Lenders is a Defaulting Lender.
(f) With respect to any Swing Line Loans which have not been voluntarily prepaid by the Borrower pursuant to Section 2.3, the Swing Line Lender may at any time in its sole and absolute discretion (but at least on a weekly basis), deliver to the Agent (with a copy to the Borrower), no later than 11:00 a.m., Los Angeles time at least one Business Day in advance of the proposed borrowing date, a notice (which shall be deemed to be a Borrowing Notice given by the Borrower) requesting that each Revolving Loan Lender make Revolving Loans that are Base Rate Loans to the Borrower on such proposed borrowing date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which the Swing Line Lender requests the Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by the Revolving Loan Lenders other than the Swing Line Lender shall be immediately delivered by the Agent to the Swing Line Lender (and not to the Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, the Swing Line Lender’s pro rata share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by the Swing Line Lender to the Borrower, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans but shall instead constitute part of the Swing Line Lender’s outstanding Revolving Loans to the Borrower. The Borrower hereby authorizes the Agent and the Swing Line Lender to charge the Borrower’s accounts with the Table of Contents Agent and the Swing Line Lender, as the case may be (up to the amount available in each such account) in order to immediately pay the Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by the Revolving Loan Lenders, including the Revolving Loans deemed to be made by the Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such amount paid (or deemed to be paid) to the Swing Line Lender should be recovered by or on behalf of the Borrower from the Swing Line Lender in any proceeding under the Bankruptcy Code or any similar debtor relief law, the loss of the amount so recovered shall be ratably shared among all of the Lenders.
(g) If for any reason Revolving Loans are not made pursuant to Section 2.21(f) in an amount sufficient to repay any amounts owed to the Swing Line Lender in respect of any outstanding Swing Line Loans on or before the third Business Day after demand for payment thereof by the Swing Line Lender, each Revolving Loan Lender shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans, and in an amount equal to its pro rata share of the applicable unpaid amount together with accrued interest thereon. Upon one Business Days’ notice from the Swing Line Lender, each Revolving Loan Lender shall deliver to the Swing Line Lender an amount equal to its respective participation in the applicable unpaid amount in same day funds to the account designated by the Swing Line Lender. In the event any Revolving Loan Lender fails to make available to the Swing Line Lender the amount of such Revolving Loan Lender’s participation as provided in this Section, the Swing Line Lender shall be entitled to recover such amount on demand from such Revolving Loan Lender together with interest thereon at the greater of the Federal Funds Effective Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation.
(h) Notwithstanding anything contained herein to the contrary, (i) each Revolving Loan Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to Section 2.21(f) and each Revolving Loan Lender’s obligation to purchase a participation in any unpaid Swing Line Loans pursuant to Section 2.21(g) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, any Loan Party or any other Person for any reason whatsoever; (B) the occurrence or continuation of a Default or Event of Default; (C) any adverse change in the business, operations, properties, assets or condition (financial or otherwise) of any Loan Party; (D) any breach of this Agreement or any other Loan Document by any party thereto; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided, such obligations of each Lender are subject to the condition that Swing Line Lender had not received prior notice from the Borrower or the Required Lenders that any of the conditions under Section 4.2 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, were not satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made; and (ii) the Swing Line Lender shall not be obligated to make any Swing Line Loans (A) if it has elected not to do so after the occurrence and during the continuation of a Default or Event of Default, (B) it does not in good faith believe that all conditions under Section 4.2 to the making of such Swing Line Loan have been satisfied or waived by the Required Lenders or (C) at a time when any Lender shall be in default of its obligations under this Agreement is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to Table of Contents eliminate the Swing Line Lender’s risk with respect to such defaulting the Defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender including by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained depositing with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day Agent immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) available funds in an amount equal acceptable to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and cover such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedrisk.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (J2 Global, Inc.)
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions hereofset forth herein, the Swing Line Lender agrees agrees, in reliance upon the agreements of the other Banks set forth in this Section 2.10, to make loans under this Agreement (each such loan, a “"Swing Line Loan” and, collectively, the “Swing Line Loans”") to the Borrower from time to time during on any Business Day prior to the Maturity Date (or, if earlier, the date of termination of Commitments pursuant to Section 12.4 hereof) in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Commitment Period. Percentage of the Outstanding Loans and Letters of Credit Outstanding of the Bank acting as Swing Line Lender, may exceed the amount of such Bank's Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Outstanding Loans, Letters of Credit Outstanding and Swing Line Loans (i) may be repaid Outstanding shall not exceed the Total Commitment, and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance Outstanding Loans of any Bank (other than the Swing Line Lender), plus such Bank's Commitment Percentage of the Letters of Credit Outstanding, plus such Bank's Commitment Percentage of the amount of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender Outstanding shall not be obligated to make exceed such Bank's Commitment; provided, further, that the Borrower shall not use the proceeds of any Swing Line Loan at a time when to refinance any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Outstanding Swing Line Loan; and provided, further, that in all events no Default or Event of Default shall have occurred and be continuing. The Swing Line Lender will not make a Swing Line Loan if Within the Administrative Agentforegoing limits, or any Lender by notice and subject to the Swing Line Lender other terms and conditions hereof, the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loanmay borrow under this Section 2.10, shall have determined that the conditions set forth in Sections 5 and/or 6prepay under Section 3 hereof, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loanreborrow under this Section 2.10. Each Swing Line Loan shall be due and payable on a Base Rate Loan. Immediately upon the day (the “making of a Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable theretoLoan, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice each Bank shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocablyto, and severally (hereby irrevocably and not jointly) unconditionally agrees to, purchase from the Swing Line Lender a risk participation in the outstanding such Swing Line Loans (including accrued interest thereon) Loan in an amount equal to the product of its such Bank's Commitment Percentage and times the outstanding balance amount of the such Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan DocumentsLoan.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Master Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Swing Line Loans. (ai) Subject Notwithstanding any other provision of this Agreement to the terms contrary, in order to administer the revolving facility under Section 2.01(a) above in an efficient manner and conditions hereofto minimize the transfer of funds between the Agent and the Lenders, the Swing Line Lender agrees to shall make loans under this Agreement (each a “available Swing Line Loan” and, collectively, the “Swing Line Loans”) Loans to the Borrower from time at the election of Borrower prior to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line CommitmentTermination Date. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and pursuant hereto (i) if the Borrower to eliminate is not in compliance with all the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice conditions to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect making of Loans set forth in this Agreement, (ii) if after giving effect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of exceed the Swing Line Loans Commitment, or (each, a “iii) if after giving effect to such Swing Line Participation Amount”)Loan, the sum of all Revolving Credit Loans and Swing Line Loans then outstanding, plus LC Exposure exceeds the Aggregate Revolving Credit Commitments. Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower Loans made pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities 2.01(b) shall be unconditional and without regard limited to Loans bearing interest at the occurrence Base Rate or such other rate of any Default or Event of Default or the compliance interest as agreed upon by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments indebtedness of the Borrower to the Swing Line Lender upon receipt thereof resulting from the advances under this Section 2.01(b) shall be evidenced by the Swing Line Note made by the Borrower, which Swing Line Note shall be in like funds as receiveda principal amount equal to the Swing Line Commitment.
(eii) Whenever Subject to the Administrative Agent is reimbursed by terms of this Agreement, during the period from the Closing Date to but excluding, the Revolving Credit Termination Date, the Borrower for may borrow, repay and reborrow Swing Line Loans under this Section 2.01(b). Each repayment of a Swing Line Loan shall be in integral multiples of $100,000 or the account unpaid amount of the Swing Line Lender for any payment in connection with Loans outstanding. The minimum outstanding amount of Swing Line Loans and shall be $100,000.
(iii) If the Borrower instructs the Swing Line Lender to debit its demand deposit account in an amount of any payment with respect to a Swing Line Loan, or the Swing Line Lender otherwise receives repayment after 12:00 noon Charlotte time, on a Business Day, such payment relates shall be deemed received on the next Business Day.
(iv) The Borrower and each Lender which is or may become a party hereto acknowledge that all Swing Line Loans are to be made solely by the Swing Line Lender to the Borrower, but that each Lender shall share the risk of loss with respect to such Loans in an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment equal to such Lender's Percentage Share of such Swing Line Loan. Upon demand made by the Swing Line Lender, each Lender (including the Swing Line Lender) shall, according to its Percentage Share of such Swing Line Loan, promptly provide to the Swing Line Lender its purchase price therefor in an amount equal to its Percentage Share therein, in which case such Swing Line Loan shall be deemed from and after such date a Loan made under Section 2.01(a). The obligation of each Lender to so provide its purchase price to the Swing Line Lender shall be absolute and unconditional and shall not be affected by the occurrence of an Event of Default or any other occurrence or event.
Appears in 1 contract
Swing Line Loans. (a) Subject The Swing Line Lender shall from time to ---------------- time from the Closing Date through the day prior to the terms and conditions hereofLine A Maturity Date make Swing Line Loans to Borrower in such amounts as Borrower may request, provided that (a) after giving effect to such Swing Line Loan, the Swing Line -------- Outstandings do not exceed $5,000,000, (b) without the consent of all of the Lenders, no Swing Line Loan may be made during the continuation of an Event of Default and (c) the Swing Line Lender agrees has not given at least twenty-four (24) hours prior notice to make loans Borrower that availability under the Swing Line is suspended or terminated. Borrower may borrow, repay and reborrow under this Agreement Section. Unless notified to the contrary by the Swing Line Lender, borrowings under the Swing Line may be made in amounts which are integral multiples of $100,000 upon telephonic request by a Responsible Official of Borrower made to the Administrative Agent not later than 1:00 p.m., California time, on the Banking Day of the requested borrowing (which telephonic request shall be promptly confirmed in writing by telecopier). Promptly after receipt of such a request for borrowing, the Administrative Agent shall provide telephonic verification to the Swing Line Lender that, after giving effect to such request, availability for Loans will exist under Section 2.1(a) (and such verification shall be ----- promptly confirmed in writing by telecopier). Unless notified to the contrary by the Swing Line Lender, each repayment of a “Swing Line Loan shall be in an amount which is an integral multiple of $100,000. If Borrower instructs the Swing Line Lender to debit its demand deposit account at the Swing Line Lender in the amount of any payment with respect to a Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during or the Swing Line Commitment Period. Swing Line Loans (i) may Lender otherwise receives repayment, after 3:00 p.m., California time, on a Banking Day, such payment shall be repaid and reborrowed in accordance with deemed received on the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitmentnext Banking Day. The Swing Line Lender shall not be obligated to make any promptly notify the Administrative Agent of the Swing Loan Outstandings each time there is a change therein.
(a) Swing Line Loan Loans shall bear interest at a time when any Lender fluctuating rate per annum equal to the Alternate Base Rate. Interest shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to payable on such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will dates, not make a Swing Line Loan if the Administrative Agentmore frequent than monthly, or any Lender as may be specified by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable any event on the day (the “Swing Line A Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of be responsible for invoicing Borrower for such interest. The interest payable on Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent solely for the account of the Swing Line Lender its (subject to clause (d) below).
(b) The Swing Line Participation Amount at Loans shall be payable on demand made by the office Swing Line Lender and in any event on the Line A Maturity Date.
(c) Upon the making of a Swing Line Loan, each Lender shall be deemed to have purchased from the Swing Line Lender a participation therein in an amount equal to that Lender's Pro Rata Share of the Administrative Agent specified in Section 11.2, in lawful money Commitment times the amount ----- of the United States and in immediately available fundsSwing Line Loan. The Administrative Agent shall deliver the payments Within one (1) Banking Day after demand made by the Swing Line Lender, each Lender pursuant shall, according to its Pro Rata Share of the immediately preceding sentence Line A Commitment, promptly provide to the Swing Line Lender promptly upon receipt thereof its purchase price therefor in like funds as receivedan amount equal to its participation therein. Each The obligation of each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and so provide its purchase price to the Swing Line Lender from shall be absolute and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section unconditional (except in respect of losses, liabilities or other obligations suffered only demand made by the Administrative Agent or the Swing Line Lender, as ) and shall not be affected by the case may be, resulting from occurrence of a Default or Event of Default; provided that no Lender shall be obligated to purchase its Pro Rata Share of (i) -------- Swing Line Loans to the gross negligence or willful misconduct extent that Swing Line Outstandings are in excess of $5,000,000 and (ii) any Swing Line Loan made (absent the consent of all of the Administrative Agent or Lenders) during the continuation of an Event of Default. Each Lender that has provided to the Swing Line LenderLender the purchase price due for its participation in Swing Line Loans shall thereupon acquire a pro rata participation, as the case may be), and such Lender shall pay interest to the Administrative Agent for extent of such payment, in the account claim of the Swing Line Lender from against Borrower for principal and interest and shall share, in accordance with that pro rata participation, in any principal payment made by Borrower with respect to such claim and in any interest payment made by Borrower (but only with respect to periods subsequent to the date such amount was due until Lender paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute Lender its purchase price) with respect to such interest payments claim.
(d) In the event that the Swing Line Outstandings are in excess of $3,000,000 on three (3) consecutive Banking Days, then on the next Banking Day (unless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings below $3,000,000), Borrower shall request a Loan pursuant to Section 2.1(a) sufficient to reduce the Swing Line ------ Outstandings below $3,000,000. In addition, upon receipt thereof in like funds as received.
any demand for payment of the Swing Line Outstandings by the Swing Line Lender (eunless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings to $0), Borrower shall request a Loan pursuant to Section 2.1(a) Whenever ------ sufficient to repay all Swing Line Outstandings (and, for this purpose, Section 2.1(f) shall not apply). In each case, the Administrative Agent shall ------ automatically provide the responsive Advances made by each Lender to the Swing Line Lender (which the Swing Line Lender shall then apply to the Swing Line Outstandings). In the event that Borrower fails to request a Loan within the time specified by Section 2.2 on any such date, the Administrative Agent may, --- but is reimbursed not required to, without notice to or the consent of Borrower, cause Advances to be made by the Borrower for Lenders under the account Commitment in amounts which are sufficient to reduce the Swing Line Outstandings as required above. The conditions precedent set forth in Article 8 shall not apply to Advances to be --------- made by the Lenders pursuant to the three preceding sentences. The proceeds of such Advances shall be paid directly to the Swing Line Lender for any payment in connection with application to the Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderOutstandings.
Appears in 1 contract
Swing Line Loans. (a1) Subject By telephonic notice, promptly followed (within three Business Days) by the facsimile delivery of a confirming Borrowing Request, to the terms Swing Line Lender on or before 11:00 a.m., New York time, on a Business Day, any Borrower may from time to time irrevocably request that Swing Line Loans be made by the Swing Line Lender in an aggregate minimum principal amount of $500,000 and conditions hereofan integral multiple of $100,000. Each request by any Borrower for a Swing Line Loan shall constitute a representation and warranty by the Borrowers that on the date of such request and (if different) the date of the making of the Swing Line Loan, both immediately before and after giving effect to such Swing Line Loan and the application of the proceeds thereof, the statements made in Section 5.2.1 are true and correct. All Swing Line Loans shall be made as Base Rate Loans and shall not be entitled to be converted into LIBO Rate Loans. The proceeds of each Swing Line Loan shall be made available by the Swing Line Lender, by its close of business on the Business Day telephonic notice is received by it as provided in the preceding sentences in immediately available funds, to the Borrower requesting the Loan by wire transfer or otherwise to and accounts such Borrower shall have specified in its notice therefor.
(2) The Swing Line Lender, at any time in its sole and absolute discretion, may request each Lender that has a Revolving Loan Commitment, and each such Lender, including the Swing Line Lender hereby agrees, to make a Revolving Loan (which shall always be initially funded as a Base Rate Loan) in an amount equal to such Lender's Percentage of the amount of the Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given. On or before 11:00 a.m. (New York time) on the first Business Day following receipt by each Lender of a request to make Revolving Loans as provided in the preceding sentence, each such Lender (other than the Swing Line Lender) shall deposit in an account specified by the Administrative Agent to the Lenders from time to time the amount so requested in same day funds, whereupon such funds shall be immediately delivered to the Swing Line Lender (and not a Borrower) and applied to repay the Refunded Swing Line Loans. On the day such Revolving Loans are made, the Swing Line Lender's Percentage of the Refunded Swing Line Loans shall be deemed to be paid. Upon the making of any Revolving Loan pursuant to this clause, the amount so funded shall become due under such Lender's Revolving Note and shall no longer be owed under the Swing Line Note. Each Lender's obligation to make the Revolving Loans referred to in this clause shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, any Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of any Default; (iii) any adverse change in the condition (financial or otherwise) of any Borrower or any other Obligor, including a reduction in the Borrowing Base Amount subsequent to the date of the making of any Swing Line Loan; (iv) the acceleration or maturity of any Loans or the termination of the Revolving Loan Commitment after the making of any Swing Line Loan; (v) any breach of this Agreement by any Borrower or any other Lender; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(3) In the event that (i) any of the Borrowers or any of their Subsidiaries is subject to any bankruptcy or insolvency proceedings as provided in Section 8.1.9 or (ii) the Swing Line Lender otherwise requests, each Lender with a Revolving Loan Commitment shall acquire without recourse or warranty an undivided participation interest equal to such Lender's Percentage of any Swing Line Loan otherwise required to be repaid by such Lender pursuant to the preceding clause by paying to the Swing Line Lender on the date on which such Lender would otherwise have been required to make a Revolving Loan in respect of such Swing Line Loan pursuant to the preceding clause, in same day funds, an amount equal to such Lender's Percentage of such Swing Line Loan, and no Revolving Loans shall be made by such Lender pursuant to the preceding clause. From and after the date on which any Lender purchases an undivided participation interest in a Swing Line Loan pursuant to this clause, the Swing Line Lender agrees shall distribute to make loans under this Agreement such Lender (each a “appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender's participation interest is outstanding and funded) its ratable amount of all payments of principal and interest in respect of such Swing Line Loan” andLoan in like funds as received; provided, collectivelyhowever, that in the “Swing Line Loans”) to the Borrower from time to time during event such payment received by the Swing Line Commitment Period. Swing Line Loans (i) may Lender is required to be repaid and reborrowed in accordance with the provisions hereofreturned to any Borrower, (ii) such Lender shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding return to the Swing Line Commitment. The Lender the portion of any amounts which such Lender had received from the Swing Line Lender in like funds.
(4) Notwithstanding anything herein to the contrary, the Swing Line Lender shall not be obligated to make any Swing Line Loan at Loans if it has elected after the occurrence of a time when any Lender shall be in default of its obligations under this Agreement unless the Default not to make Swing Line Lender Loans and has entered into arrangements satisfactory to it and notified the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation Parent in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, writing or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making facsimile delivery of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable theretoelection. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, promptly give notice to the Lenders and the Borrower that of such outstanding election not to make Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such timeLoans.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereofset forth herein, the Swing Line Lender agrees to make loans under this Agreement Swing Line Loans in Dollars to the Borrowers during the Revolving Credit Period in such amounts as the Borrowers may request, provided that:
(i) after giving effect to each a “such Swing Line Loan” and, collectively, (A) the “aggregate Swing Line Loans”Outstandings shall not exceed US$25,000,000, and (B) the aggregate principal amount of the Revolving Outstandings shall not exceed the aggregate Revolving Commitments, provided, however, that the availability of the aggregate Revolving Commitments at any time for the making of Loans and the issuance of Letters of Credit shall be reduced by the amount of the Alternative Currency Reserve; and
(ii) without the consent of all of the Lenders, no Swing Line Loan may be made during the continuation of any Default or Event of Default. The Borrowers may borrow, repay and reborrow under this Section. Unless notified to the Borrower from time to time during contrary by the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereofLender, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding borrowings under the Swing Line Commitmentmay be made in amounts which are integral multiples of US$250,000 upon telephonic request by an Authorized Officer made to the Administrative Agent not later than 1:00 P.M. (California local time), on the Business Day of the requested Swing Line Loan (which telephonic request shall be promptly confirmed in writing by telecopier). Promptly after receipt of such a request for a Swing Line Loan, the Administrative Agent shall provide telephonic verification to the Swing Line Lender that the requested Swing Line Loan is in conformity with this Section. Unless the Swing Line Lender otherwise agrees, each repayment of a Swing Line Loan shall be in an amount which is an integral multiple of US$250,000. If the Company instructs the Swing Line Lender to debit its demand deposit account at the Swing Line Lender in the amount of any payment with respect to a Swing Line Loan, or the Swing Line Lender otherwise receives repayment, after 3:00 p.m. (California local time), on a Business Day, such payment shall be deemed received on the next Business Day. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if promptly notify the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day Agent of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. Outstandings each time there is a change therein.
(b) The Swing Line Lender shall disburse be responsible for submitting invoices to the proceeds of Borrowers for such interest. The interest payable on Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent solely for the account of the Swing Line Lender its unless and until the Revolving Lenders fund their participations therein pursuant to clause (d) of this Section.
(c) The Swing Line Participation Amount at Loans shall be payable on demand made by the office Swing Line Lender and in any event on the Five-Year Maturity Date.
(d) Upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to have purchased from the Swing Line Lender a participation therein in an amount equal to that Revolving Lender’s Pro Rata Share of the Administrative Agent specified in Section 11.2, in lawful money Aggregate Revolving Commitments times the amount of the United States and in immediately available fundsSwing Line Loan. The Administrative Agent shall deliver the payments Upon demand made by the Swing Line Lender, each Revolving Lender pursuant shall, according to the immediately preceding sentence such percentage, promptly provide to the Swing Line Lender promptly upon receipt thereof its purchase price therefor in like funds as receivedan amount equal to its participation therein. Each The obligation of each Revolving Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and so provide its purchase price to the Swing Line Lender from shall be absolute and against any unconditional and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered shall not be affected by the Administrative Agent occurrence of a Default or Event of Default. Each Revolving Lender that has provided to the Swing Line Lender, as Lender the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the purchase price due for its participation in Swing Line LenderLoans shall thereupon acquire a pro rata participation, as the case may be), and such Lender shall pay interest to the Administrative Agent for extent of such payment, in the account claim of the Swing Line Lender from against the Borrowers for principal and interest and shall share, in accordance with that pro rata participation, in any principal payment made by the Borrowers with respect to such claim and in any interest payment made by the Borrowers (but only with respect to periods subsequent to the date that Revolving Lender paid the Swing Line Lender its purchase price) with respect to such amount was due until paid in full, on claim.
(e) Upon any demand for payment of the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand Swing Line Outstandings by the Swing Line Lender. The Administrative Agent shall distribute such interest payments Lender (unless the Borrowers have made other arrangements acceptable to the Swing Line Lender upon receipt thereof to reduce the Swing Line Outstandings to US$0), the Borrowers shall request a Borrowing in like funds an amount sufficient to repay all Swing Line Outstandings (and, for this purpose, the limitations as received.
(e) Whenever to the minimum amounts of Base Rate Borrowings set forth in Section 2.01 shall not apply). In each case, the Administrative Agent is reimbursed shall automatically provide the responsive Loans made by each Revolving Lender to the Swing Line Lender (which the Swing Line Lender shall then apply to the Swing Line Outstandings). In the event that the Borrowers fail to request a Borrowing within the time specified by Section 2.04 on any such date, the Administrative Agent may, but shall not be required to, without notice to or the consent of the Borrowers, cause Loans to be made by the Borrower for Revolving Lenders under their Revolving Commitments in amounts which are sufficient to reduce the account Swing Line Outstandings as required above. The conditions precedent set forth in Section 3.01 shall not apply to Loans to be made by the Revolving Lenders pursuant to the three preceding sentences. The proceeds of such Loans shall be paid directly to the Swing Line Lender for any payment in connection with application to the Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderOutstandings.
Appears in 1 contract
Swing Line Loans. (a) Subject During the Commitment Period, the Swing Line Lender agrees, subject to the terms and conditions hereofset forth herein and in reliance upon the agreements of the other Lenders set forth herein, the Swing Line Lender agrees to make revolving credit loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during on any Business Day; provided that (i) the aggregate principal amount of Swing Line Loans shall not exceed NINETY MILLION DOLLARS ($90,000,000) (as such amount may be increased or decreased in accordance with the provisions hereof, the “Swing Line Committed Amount”), (ii) with respect to the Lenders collectively, the aggregate principal amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed Amount, (iii) with regard to each Lender individually, such Lender’s Revolving Commitment PeriodPercentage of Revolving Obligations shall not exceed its respective Revolving Committed Amount, and (iv) the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Swing Line Loans (i) shall be comprised solely of Loans bearing interest based on the Base Rate or such other rate as may be agreed, in each case as provided in Section 2.08(a)(iii), and may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in . Immediately upon the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance making of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line each Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocablyto, and severally (hereby irrevocably and not jointly) unconditionally agrees to, purchase from the Swing Line Lender a participation interest in the outstanding such Swing Line Loans (including accrued interest thereon) Loan in an amount equal to the product of its such Lender’s Revolving Commitment Percentage and the outstanding balance of the thereof. No Swing Line Loans Loan shall remain outstanding for longer than ten (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents10) Business Days.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions hereofset forth herein, the Swing Line Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans under this Agreement (each such loan, a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Commitment Period. Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) may be repaid the Total Outstandings shall not exceed the Aggregate Commitments, and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line exceed such Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such LoanCommitment. Each Swing Line Loan shall be due a Base Rate Loan and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower bear interest in accordance with Section 2.6, and 2.08(a) hereof. Immediately upon the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each making of a Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Loan, each Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocablyto, and severally (hereby irrevocably and not jointly) unconditionally agrees to, purchase from the Swing Line Lender a risk participation in the outstanding such Swing Line Loans (including accrued interest thereon) Loan in an amount equal to the product of its Commitment such Lender’s Applicable Percentage and times the outstanding balance amount of the such Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan DocumentsLoan.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Green Mountain Coffee Roasters Inc)
Swing Line Loans. (ai) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) Loans to the Borrower Company from time to time during prior to the Swing Line Termination Date in an aggregate principal amount at any one time outstanding not to exceed $15,000,000 (the "Swing Line Loan Commitment"); provided, that after giving effect to any such Swing Line Loan, the Effective Amount of Revolving Loans, Swing Line Loans and L/C Obligations at such time would not exceed the Aggregate Revolving Loan Commitment at such time. Prior to the Swing Line Termination Date, <227> the Company may use the Swing Line Commitment Period. by borrowing, prepaying the Swing Line Loans (i) may be repaid in whole or in part, and reborrowed reborrowing, all in accordance with the provisions terms and conditions hereof.
(ii) The Company may borrow under the Swing Line Commitment on any Business Day after the Initial Funding Date but on or prior to the Swing Line Termination Date; provided, that the Company shall deliver to the Swing Line Lender a Notice of Borrowing signed by a Responsible Officer (which notice must be received by the Swing Line Lender prior to 1:00 p.m. (New York time)) with a copy to the Administrative Agent specifying the amount of the requested Swing Line Loan, which shall be in a minimum amount of $500,000 or a whole multiple of $100,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Company in immediately available funds at the office of the Swing Line Lender by 2:00 p.m. (New York time) on the date of such notice. The Company may at any time and from time to time, prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 1:00 p.m. (New York time) on any Business Day of the date and amount of prepayment with a copy to the Administrative Agent. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
(iii) The Swing Line Lender, at any time in its sole and absolute discretion, may on behalf of the Company (which hereby irrevocably directs the Swing Line Lender to so act on its behalf) notify the Administrative Agent to notify each Revolving Lender (including the Swing Line Lender) to make a Revolving Loan to the Company in a principal amount equal to such Lender's Pro Rata Revolving Share of the amount of such Swing Line Loan, and such Revolving Lender shall be obligated, pursuant to Section 2.01(c), to make Same Day Funds available to the Administrative Agent on the date such notice is given in an aggregate amount equal to or in excess of such Swing Line Loan, in which case such funds shall be applied by the Administrative Agent first to repay such Swing Line Loan and any remaining funds shall be made available to the Company in accordance with Section 2.01(c); provided, however, that such notice shall be deemed to have automatically been given upon the occurrence of an Event of Default under Section 10.01(g) or (h). Upon notice from the Administrative Agent, each Revolving Lender (other than the Swing Line Lender) will immediately transfer to the Administrative Agent, for transfer to the Swing Line Lender, in immediately available funds, an amount equal to such Revolving Lender's Pro Rata Revolving Share of the amount of such Swing Line Loan so repaid. <228> So long as no notice has been delivered to the Swing Line Lender pursuant to Section 2.01(d)(iv)(ii) prior to the making of each relevant Swing Line Loan, each Revolving Lender's obligation to transfer the amount of such Revolving Loan to the Administrative Agent shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set- off, counterclaim, recoupment, defense or other right which such Revolving Lender or any other Person may have against the Swing Line Lender, (ii) shall notthe occurrence or continuance of a Default or an Event of Default or the termination of the Revolving Loan Commitments, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result any adverse change in the aggregate outstanding principal balance condition (financial or otherwise) of all Swing Line Loans exceeding the Company or any other Person, (iv) any breach of this Agreement by the Company or any other Person or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(iv) Notwithstanding anything herein to the contrary, the Swing Line Commitment. The Swing Line Lender (i) shall not be obligated to make any Swing Line Loan at if the conditions set forth in Article V have not been satisfied and (ii) shall not make any requested Swing Line Loan if, prior to 11:00 a.m. (New York time) on the date two (2) days preceding the date of such requested Swing Line Loan, it has received a time when written notice from the Administrative Agent or any Revolving Lender directing it not to make further Swing Line Loans because one or more of the conditions specified in Article V are not then satisfied.
(v) If prior to the making of a Revolving Loan required to be made by Section 2.01(d)(iii) an Event of Default described in Section 10.01(g) or (h) shall be have occurred, each Revolving Lender will, on the date such Revolving Loan was to have been made pursuant to the notice described in default Section 2.01(d)(iii), purchase an undivided participating interest in the Effective Amount of Swing Line Loans in an amount equal to its Pro Rata Revolving Share of the Effective Amount of Swing Line Loans then outstanding. Each Revolving Lender will immediately transfer to the Administrative Agent for the benefit of the Swing Line Lender, in immediately available funds, the amount of its obligations under this Agreement unless participation.
(vi) Whenever, at any time after a Revolving Lender has purchased a participating interest in a Swing Line Loan, the Swing Line Lender has entered into arrangements satisfactory to it and receives any payment on account thereof, the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a distribute to the Administrative Agent for delivery to <229> such Revolving Lender the amount of its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender's participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Loan if Lender is required to be returned, such Revolving Lender will return to the Administrative Agent, or any Lender by notice Agent for delivery to the Swing Line Lender and any portion thereof previously distributed by the Borrower Swing Line Lender to it.
(vii) <230> So long as no later than one Domestic Business Day notice has been delivered to the Swing Line Lender pursuant to Section 2.01 (d)(iv)(ii) prior to the Borrowing Date with respect to such making of each relevant Swing Line Loan, shall have determined that each Revolving Lender's obligation to make the conditions set forth Revolving Loans referred to in Sections 5 and/or 6, as applicable, have not been satisfied Section 2.01(d)(iii) and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan to purchase participating interests pursuant to Section 2.01(d)(v) shall be due absolute and payable on the day unconditional and shall not be affected by any circumstance, including, without limitation, <231> (the “Swing Line Maturity Date”I) being the earliest of the last day of the Swing Line Interest Period applicable theretoany set-off, the date on counterclaim, recoupment, defense or other right which the Swing Line Commitment shall such Revolving Lender or a Borrower may have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with against the Swing Line Lender.
, a Borrower or any other Person for any reason whatsoever, (bII) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence or continuance of a Default or an Event of Default under Sections 9.1(h)Default, (iIII) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing any adverse change in the amount and in condition (financial or otherwise) of the manner specified in the preceding sentence and on the date specified in writing Company or any Subsidiary Guarantor, (IV) any breach of this Agreement or any other Loan Document by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default Company or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
Subsidiaries or any other Lender or (dV) In furtherance of Section 2.2(c)any other circumstance, upon each receipt by a Lender of notice from the Administrative Agenthappening or event whatsoever, such Lender shall promptly make available whether or not similar to the Administrative Agent for the account any of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedforegoing.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Macdermid Inc)
Swing Line Loans. (a) Subject The Borrower may prior to the terms and conditions hereofTermination Date, as set forth in this Section, request the Swing Line Lender agrees to make loans under this Agreement make, and the Swing Line Lender prior to the Termination Date will make, Swing Line Loans to the Borrower, in an aggregate principal amount at any one time outstanding, not exceeding $10,000,000, provided that:
(each i) the aggregate principal amount of all Swing Line Loans, together with the aggregate outstanding principal amount of all outstanding Loans, at any one time outstanding shall not at any one time exceed the aggregate amount of the Commitments of all of the Banks at such time; and
(ii) the aggregate principal amount of all Swing Line Loans, together with all outstanding Loans made by the Swing Line Lender, at any one time outstanding shall not exceed the Commitment of the Swing Line Lender.
(b) When the Borrower wishes to request a Swing Line Loan, it shall give the Agent notice substantially in the form of Exhibit M hereto (a “Swing Line Loan” andLoan Request”) so as to be received no later than 11:00 A.M. (Charlotte, collectively, North Carolina time) on or before the “date of the proposed Swing Line Loans”) to Borrowing proposed therein (or such other time and date as the Borrower from time to time during and the Swing Line Commitment Period. Swing Line Loans Lender may agree), specifying:
(i) may the proposed date of such Swing Line Borrowing, which shall be repaid a Domestic Business Day (the “Borrowing Date”); and reborrowed in accordance with the provisions hereof, WCSR 2018712
(ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance amount of all such Swing Line Loans exceeding Borrowing, which shall be at least $500,000 (or in larger multiples of $100,000) but shall not cause the Swing Line Commitment. limits specified in Section 2.14(a) to be violated.
(c) The Swing Line Lender shall not be obligated to make any the amount of such Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory available to it and the Borrower to eliminate on such date by depositing the Swing Line Lender’s risk with respect to such defaulting Lender’s participation same, in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agentimmediately available funds, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the such Borrower maintained with the Swing Line Lender.
(bd) Subject to the limitations contained in this Agreement, the Borrower may borrow under this Section 2.14, prepay and reborrow under this Section 2.14 at any time before the Termination Date. Each Swing Line Loan included in any Swing Line Borrowing shall mature, and the principal amount thereof shall be due and payable, on the first to occur of: (i) the last day of the Interest Period applicable to such Swing Line Borrowing; or (ii) the Termination Date;
(e) At any time, upon the request of the Swing Line Lender, each Bank other than the Swing Line Lender shall, on the third Domestic Business Day after such request is made, purchase a participating interest in Swing Line Loans in an amount equal to its ratable share (based upon its respective Commitment) of such Swing Line Loans. On any such third Domestic Business Day, each Bank will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation. Whenever, at any time after the Swing Line Lender mayhas received from any such Bank its participating interest in a Swing Line Loan, the Agent receives any payment on account thereof, the Agent will distribute to such Bank its participating interest in such amount (appropriately adjusted, in its sole discretionthe case of interest payments, give notice to reflect the period of time during which such Bank’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Agent is required to be returned, such Bank will return to the Lenders Agent any portion thereof previously distributed by the Agent to it. Each Bank’s obligation to purchase such participating interests shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation: (i) any set-off, counterclaim, recoupment, defense or other right which such Bank or any other Person may have against the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans Lender requesting such purchase or any other Person for any reason whatsoever; (provided that such notice shall be deemed to have been automatically given upon ii) the occurrence or continuance of a Default or an Event of Default under Sections 9.1(hor the termination of the Commitments, provided that no Bank shall be required to purchase a participating interest in any Swing Line Loan first advanced after the Swing Line Lender has actual knowledge of an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Bank, provided that no Bank shall be required to purchase a participating interest in any Swing Line Loan, if the aggregate outstanding principal amount of all Swing Line Loans exceeds $10,000,000; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(f) In furtherance and not in limitation of the rights set forth in Section 2.14(e), (i) or (j))the Swing Line Lender may, at any time, in its sole discretion, by written notice to the Borrower and the Agent, demand repayment of its Swing Line Loans by way of a Syndicated Loan borrowing, in which case the Borrower shall be deemed to have requested a Syndicated WCSR 2018712 Loan borrowing comprised entirely of Revolving Base Rate Loans in the amount of such Swing Line Loans; provided, however, that, in the following circumstances, any such demand shall also be deemed to have been given one Domestic Business Day prior to each of (i) the Termination Date, (ii) the occurrence of any Event of Default described in Section 6.01(g) or Section 6.01(h), (iii) upon acceleration of the Notes or any other amount payable hereunder or under the Credit Loans made as ABR Advances Documents, whether on account of an Event of Default described in Section 6.01(g) or Section 6.01(h) or any other Event of Default, and (iv) the exercise of remedies in accordance with the provisions of Section 6.01 hereof (each such borrowing, Syndicated Loan borrowing made on account of any such deemed request therefor as provided herein being hereinafter referred to as a “Swing Line Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender Bank hereby irrevocably agrees to make a Revolving Credit Loan pursuant to such Syndicated Loans promptly upon any such request or deemed request on account of each Swing Line Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the same such date specified in writing by the Swing Line Lender notwithstanding: notwithstanding (iA) whether the amount of such Swing Line Mandatory Borrowing complies may not comply with the minimum amount for borrowings of Syndicated Loans otherwise required hereunder, (iiB) whether any condition conditions specified in Section 6 is 3.02 are then unsatisfiedsatisfied, (iiiC) whether a Default or an Event of Default then exists, (ivD) failure of any such request or deemed request for Revolving Loans to be made by the time otherwise required in Section 2.02, (E) the Borrowing Date date of such Swing Line Mandatory Borrowing, or (vF) any reduction in the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount Commitments or termination of the Commitments at immediately prior to such timeSwing Line Mandatory Borrowing or contemporaneously therewith.
(cg) Upon each receipt by a Lender of notice from Notwithstanding anything contained in this Agreement to the Administrative Agentcontrary, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation Loan facility contained in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities 2.14 shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in terminate immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to upon: (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and Wachovia’s removal or resignation as Agent; or (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account termination of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderCommitments (whether at maturity or otherwise).
Appears in 1 contract
Swing Line Loans. (a) Subject to and upon the terms and conditions hereofherein set forth (including the limitation set forth in Section 2.01), the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” andto Borrower, collectively, the “Swing Line Loans”) to the Borrower from time to time during prior to the Maturity Date, Swing Line Loans in Dollars for periods of up to ninety (90) days in an aggregate principal amount outstanding at any time not to exceed the Swing Line Commitment Periodthen in effect. Borrower shall be entitled to repay and reborrow Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amountprovisions, and subject to the limitations, set forth herein (iii) shall not, immediately after giving effect thereto, result including the limitation set forth in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line CommitmentSection 2.01). The Swing Line Lender shall not be obligated to make any aggregate principal amount of each Swing Line Loan at a time when any Lender shall be in default not less than $100,000 or a greater integral multiple of its obligations under this Agreement unless $100,000.
(b) Each Swing Line Loan shall be made as a Swing Line Advance.
(c) Whenever Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Lender has entered into arrangements satisfactory (with a copy to it and the Borrower to eliminate Administrative Agent, unless the Administrative Agent is also the Swing Line Lender’s risk with respect to such defaulting Lender’s participation ) prior written notice in the form of a Notice of Borrowing (or telephonic notice promptly confirmed in writing) of such Swing Line Loan. The Borrowing prior to 12:00 noon (Charlotte, North Carolina time) on the date of such Swing Line Borrowing, specifying the aggregate principal amount of the Swing Line Borrowing, the date of such Swing Line Borrowing (which shall be a Business Day) and whether such Swing Line Borrowing shall bear interest at the Base Rate or the LIBOR Market Index Rate.
(d) Borrower’s obligations to pay the principal of, and interest on, the Swing Line Loans shall be evidenced by the records of the Administrative Agent and the Swing Line Lender will not make a and by the Swing Line Loan if the Administrative Agent, or any Lender by notice Note payable to the Swing Line Lender and (or the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to assignor of such Swing Line Loan, shall have determined that the conditions set forth Lender) completed in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each conformity with this Agreement.
(e) The outstanding principal amount under each Swing Line Loan shall be due and payable in full on the day (the “Swing Line Maturity Date”.
(f) being At any time on the earliest of the last day request of the Swing Line Interest Period applicable theretoLender, each Syndicated Lender other than the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of purchase a participating interest in all outstanding Swing Line Loans at in an amount equal to its office designated Pro Rata Share (based upon on its respective Syndicated Loan Commitment) of such Swing Line Loans, and the Swing Line Lender shall furnish each Syndicated Lender with a certificate evidencing such participating interest. Such purchase shall be made on the third Business Day after such request is made; provided, however, that unless an Event of Default has occurred and is continuing on the date such request is made, the purchase of a participating interest in Section 11.2 by crediting such proceeds any Swing Line Loan outstanding as a Swing Line Advance shall not be required to an account be made until the expiration of the Borrower maintained with current interest period in effect for such Swing Line Loan. On the date of such required purchase, each Syndicated Lender will immediately transfer to the Swing Line Lender.
(b) On , in immediately available funds, the amount of its participation. Whenever, at any Domestic Business Day, time after the Swing Line Lender mayhas received from any such Syndicated Lender the funds for its participating interest in a Swing Line Loan, the Administrative Agent receives any payment on account thereof, the Administrative Agent will distribute to such Syndicated Lender its participating interest in such amount (appropriately adjusted, in its sole discretionthe case of interest payments, give notice to reflect the period of time during which such Syndicated Lender’s participating interest was outstanding and funded); provided, however, that if such payment received by the Administrative Agent is required to be returned, such Syndicated Lender will return to the Lenders Administrative Agent any portion thereof previously distributed by the Administrative Agent to it. Each Syndicated Lender’s obligation to purchase such participating interests shall be absolute and the Borrower unconditional and shall not be affected by any circumstance, including without limitation (i) any setoff, counterclaim, recoupment, defense or other right that such outstanding Syndicated Lender or any other Person may have against the Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans Lender requesting such purchase or any other Person for any reason whatsoever, (provided that such notice shall be deemed to have been automatically given upon ii) the occurrence or continuation of a Default or an Event of Default under Sections 9.1(h)or the termination of any of the Commitments, (iiii) any adverse change in the condition (financial or otherwise) of Borrower, any of its Consolidated Subsidiaries, or any other Person, (iv) any breach of this Agreement by Borrower, any other Credit Party, or any other Lender, or (j))v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided, however, that no such obligation shall exist (A) to the extent that the aggregate Swing Line Loans were advanced in which case a borrowing excess of Revolving Credit Loans made as ABR Advances the Swing Line Commitment then in effect, or in excess of the limitation set forth in Section 2.01, or (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly B) with respect to any Swing Line Loan where the Swing Line Lender actually advanced to repay such outstanding Borrower net proceeds from the Swing Line Loan (and therefore was not refunding a previous Swing Line Loan. Each Lender irrevocably agrees to make ) at a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by time when (x) the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or had actual knowledge that an Event of Default had occurred and then existsexisted, and (ivy) the Borrowing Date of Required Lenders had not agreed to waive such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any for purposes of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, funding such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedLoan.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject In addition to the other options available to Borrower hereunder, up to $80,000,000 shall be available for Swing Line Loans subject to the following terms and conditions conditions. Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.10 hereof, . All Swing Line Loans shall bear interest at the ABR Rate. In no event shall the Swing Line Lender agrees be required to make loans under this Agreement (each fund a “Swing Line Loan” and, collectively, Loan if it would increase the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans sum of (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Percentage of the total aggregate outstanding Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan Loans hereunder, plus (ii) its Percentage of Facility Letter of Credit Obligations, plus (iii) its other outstanding Loans (other than Competitive Bid Loans) to an amount in excess of its Commitment or if it would cause the Administrative Agent, or any Lender by notice Allocated Facility Amount to exceed the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such LoanAggregate Commitment. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated paid in full by the Borrower in accordance with Section 2.6, and on or before the date on which fifth (5th) day after the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Borrowing Date for such Swing Line Loan shall bear interest at the Negotiated Rate applicable theretoLoan. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business DayIn addition, the Swing Line Lender may, (i) may at any time in its sole discretion, give notice discretion with respect to the Lenders and the Borrower that such any outstanding Swing Line Loan, or (ii) shall on the fifth (5th) day after the Borrowing Date of any Swing Line Loan, require each Lender (including the Swing Line Lender) to make a Loan in the amount of such Lender’s Percentage of such Swing Line Loan (including, without limitation, any interest accrued and unpaid thereon), for the purpose of repaying such Swing Line Loan. Not later than noon (Chicago time) on the date of any notice received pursuant to this Section 2.14 (provided such notice is given by 10:00 A.M. Chicago time), each Lender shall make available its required Loan, in funds immediately available in Chicago to the Administrative Agent at its address specified pursuant to Article XIV. Revolving Loans made pursuant to this Section 2.14 shall initially be ABR Loans and thereafter may be continued as ABR Loans or converted into LIBOR Loans in the manner provided in Section 2.11 and subject to the other conditions and limitations set forth in this Article II. Unless a Lender shall have notified the Swing Line Lender, prior to its making any Swing Line Loan, that any applicable condition precedent set forth in Sections 5.1 or 5.2 had not then been satisfied, such Lender’s obligation to make Loans pursuant to this Section 2.14 to repay Swing Line Loans shall be funded with a borrowing of Revolving Credit Loans unconditional, continuing, irrevocable and absolute and shall not be affected by any circumstances, including, without limitation, (provided that a) any setoff, counterclaim, recoupment, defense or other right which such notice shall be deemed to Lender may have been automatically given upon against the Administrative Agent, the Swing Line Lender or any other Person, (b) the occurrence or continuance of a Default or an Event of Default under Sections 9.1(h)Unmatured Default, (ic) any adverse change in the condition (financial or otherwise) of the Borrower, or (j))d) any other circumstances, in which case a borrowing happening or event whatsoever. In the event that any Lender fails to make payment to the Administrative Agent of Revolving Credit Loans made as ABR Advances (each such borrowingany amount due under this Section 2.14, a “Mandatory Borrowing”), the Administrative Agent shall be made by all Lenders pro rata based on each entitled to receive, retain and apply against such Lender’s Commitment Percentage on obligation the Domestic Business Day immediately succeeding principal and interest otherwise payable to such Lender hereunder until the giving Administrative Agent receives such payment from such Lender or such obligation is otherwise fully satisfied. In addition to the foregoing, if for any reason any Lender fails to make payment to the Administrative Agent of any amount due under this Section 2.14, such notice. The proceeds of each Mandatory Borrowing Lender shall be remitted directly deemed, at the option of the Administrative Agent, to have unconditionally and irrevocably purchased from the Swing Line Lender to repay such outstanding Lender, without recourse or warranty, an undivided interest and participation in the applicable Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunderpayment not made by such Lender, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of and such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time interest and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice participation may be recovered from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, together with interest thereon at the Federal Funds Effective Rate for each day during the period commencing on the date of demand and severally (and not jointly) from ending on the Swing Line Lender a participation in the outstanding date such amount is received. Swing Line Loans may be outstanding for a maximum of ten (including accrued interest thereon10) days during any calendar month. On the Facility Termination Date, the Borrower shall repay in an amount equal to the product of its Commitment Percentage and full the outstanding principal balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan DocumentsLoans.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated from time to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless from the Swing Line Lender has entered into arrangements satisfactory to it and Availability Date through the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day day prior to the Borrowing Termination Date with respect make Swing Line Loans in Dollars to Borrower in such amounts as Borrower may request, provided that (i) after giving effect to such Swing Line Loan, shall have determined that (A) the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each aggregate Swing Line Loan Outstandings shall be due not exceed $15,000,000 and payable on (B) the day (the “Swing Line Maturity Date”) being the earliest aggregate principal outstanding amount of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, all Revolving Loans and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account plus the Letter of Credit Liabilities shall not exceed the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of aggregate Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunderCommitments, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) without the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount consent of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative AgentRevolving Lenders, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the no Swing Line Lender a participation in Loan may be made during the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence continuation of any Default or Event of Default and (iii) the Swing Line Lender has not given at least twenty-four hours prior notice to Borrower that availability under the Swing Line is suspended or terminated. Borrower may borrow, repay and reborrow under this Section. Unless notified to the compliance contrary by the Borrower with any of its obligations Swing Line Lender, borrowings under the Loan Documents.
(d) In furtherance Swing Line may be made in amounts which are integral multiples of Section 2.2(c), $1,000,000 upon each receipt telephonic request by a Lender Responsible Official of notice from the Administrative Agent, such Lender shall promptly make available Borrower made to the Administrative Agent not later than 1:00 P.M. (California local time), on the Domestic Business Day of the requested Swing Line Loan (which telephonic request shall be promptly confirmed in writing by telecopier). Promptly after receipt of such a request for a Swing Line Loan, the Administrative Agent shall provide telephonic verification to the Swing Line Lender that the requested Swing Line Loan is in conformity with this Section. Unless the Swing Line Lender otherwise agrees, each repayment of a Swing Line Loan shall be in an amount which is an integral multiple of $1,000,000. If Borrower instructs the Swing Line Lender to debit its demand deposit account at the Swing Line Lender in the amount of any payment with respect to a Swing Line Loan, or the Swing Line Lender otherwise receives repayment, after 3:00 p.m. (California local time), on a Domestic Business Day, such payment shall be deemed received on the next Domestic Business Day. The Swing Line Lender shall promptly notify the Administrative Agent of the Swing Loan Outstandings each time there is a change therein.
(b) The Swing Line Lender shall be responsible for submitting invoices to Borrower for such interest. The interest payable on Swing Line Loans shall be solely for the account of the Swing Line Lender its unless and until the Banks fund their participations therein pursuant to clause (d) of this Section.
(c) The Swing Line Participation Amount at Loans shall be payable on demand made by the office Swing Line Lender and in any event on the Termination Date.
(d) Upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to have purchased from the Swing Line Lender a participation therein in an amount equal to that Lender’s Pro Rata Share of the Administrative Agent specified in Section 11.2Revolving Commitment of such Swing Line Loan. Upon demand made by the Swing Line Lender, in lawful money each Revolving Lender shall, according to its Pro Rata Share of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence Revolving Commitment, promptly provide to the Swing Line Lender promptly upon receipt thereof its purchase price therefor in like funds as receivedan amount equal to its participation therein. Each The obligation of each Revolving Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and so provide its purchase price to the Swing Line Lender from shall be absolute and against any unconditional and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered shall not be affected by the Administrative Agent occurrence of a Default or Event of Default. Each Revolving Lender that has provided to the Swing Line Lender, as Lender the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the purchase price due for its participation in Swing Line LenderLoans shall thereupon acquire a pro rata participation, as the case may be), and such Lender shall pay interest to the Administrative Agent for extent of such payment, in the account claim of the Swing Line Lender from against Borrower for principal and interest and shall share, in accordance with that pro rata participation, in any principal payment made by Borrower with respect to such claim and in any interest payment made by Borrower (but only with respect to periods subsequent to the date such amount was due until Lender paid the Swing Line Lender its purchase price) with respect to such claim.
(e) In the event that the Swing Line Outstandings are in fullexcess of $10,000,000 on three consecutive Domestic Business Days then, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to next Domestic Business Day (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments unless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings below $10,000,000), Borrower shall request a Borrowing of Revolving Loans in an amount sufficient to reduce the Swing Line Outstandings below $10,000,000. In addition, upon receipt thereof any demand for payment of the Swing Line Outstandings by the Swing Line Lender (unless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings to $0), Borrower shall request a Borrowing of Revolving Loans in like funds an amount sufficient to repay all Swing Line Outstandings (and, for this purpose, the limitations as received.
(eto the minimum amounts of Base Rate Borrowings set forth in Section 2.01(b) Whenever shall not apply). In each case, the Administrative Agent is reimbursed shall automatically provide the responsive Loans made by each Revolving Lender to the Swing Line Lender (which the Swing Line Lender shall then apply to the Swing Line Outstandings). In the event that Borrower fails to request a Borrowing within the time specified by Section 2.02 on any such date, the Administrative Agent may, but shall not be required to, without notice to or the consent of Borrower, cause Revolving Loans to be made by the Borrower for Revolving Lenders under their Revolving Commitments in amounts which are sufficient to reduce the account Swing Line Outstandings as required above. The conditions precedent set forth in Section 3.01 shall not apply to Revolving Loans to be made by the Revolving Lenders pursuant to the three preceding sentences. The proceeds of such Revolving Loans shall be paid directly to the Swing Line Lender for any payment in connection with application to the Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderOutstandings.
Appears in 1 contract
Samples: Multi Year Credit Agreement (Park Place Entertainment Corp)
Swing Line Loans. (a) Subject The Borrower may prior to the terms and conditions hereofRevolving Credit Maturity Date, as set forth in this Section, request the Swing Line Lender agrees to make loans under this Agreement (each a “make, and the Swing Line Loan” andLender prior to the Revolving Credit Maturity Date will make, collectivelySwing Line Loans to the Borrower in Dollars, in an aggregate principal amount at any one time outstanding, not exceeding $10,000,000, provided that the “aggregate principal amount of all Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance , together with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance amount of all outstanding Revolving Credit Loans and Letter of Credit Obligations, at any one time outstanding shall not at any one time exceed the aggregate amount of the Revolving Credit Commitments of all of the Lenders at such time.
(b) When the Borrower wishes to request a Swing Line Loans exceeding Loan, it shall give the Administrative Agent notice substantially in the form of Exhibit O hereto (a "Swing Line Loan Request") so as to be received no later than 12:00 noon (Charlotte, North Carolina time) on or before the date of the proposed Swing Line Borrowing proposed therein (or such other time and date as the Borrower and the Swing Line Commitment. Lender may agree), specifying:
(i) the proposed date of such Swing Line Borrowing, which shall be a Domestic Business Day (the "Borrowing Date"); and
(ii) the aggregate amount of such Swing Line Borrowing, which shall be at least $100,000 (or in larger multiples of $100,000) but shall not cause the limits specified in Section 2.14(a) to be violated.
(c) The Swing Line Lender shall not be obligated to make any the amount of such Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory available to it and the Borrower to eliminate on such date by depositing the Swing Line Lender’s risk with respect to such defaulting Lender’s participation same, in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agentimmediately available funds, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(bd) Subject to the limitations contained in this Agreement, the Borrower may borrow under this Section 2.14, prepay and reborrow under this Section 2.14 at any time before the Revolving Credit Maturity Date. Each Swing Line Loan included in any Swing Line Borrowing shall mature, and the principal amount thereof shall be due and payable, on the first to occur of: (i) demand by the Swing Line Lender that such Swing Line Loan be converted to a Revolving Credit Loan; or (ii) the Revolving Credit Maturity Date.
(e) At any time, upon the request of the Swing Line Lender, each Lender other than the Swing Line Lender shall, on the third Domestic Business Day after such request is made, purchase a participating interest in Swing Line Loans in an amount equal to its ratable share (based upon its respective Revolving Credit Commitment) of such Swing Line Loans. On any such third Domestic Business Day, each Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation. Whenever, at any time after the Swing Line Lender mayhas received from any such Lender its participating interest in a Swing Line Loan, the Administrative Agent receives any payment on account thereof, the Administrative Agent will distribute to such Lender its participating interest in such amount (appropriately adjusted, in its sole discretionthe case of interest payments, give notice to reflect the period of time during which such Lender's participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Administrative Agent is required to be returned, such Lender will return to the Lenders Administrative Agent any portion thereof previously distributed by the Administrative Agent to it. Each Lender's obligation to purchase such participating interests shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation: (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans Lender requesting such purchase or any other Person for any reason whatsoever; (provided that such notice shall be deemed to have been automatically given upon ii) the occurrence or continuance of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing the termination of the Revolving Credit Loans made as ABR Advances (each such borrowingCommitments, a “Mandatory Borrowing”), provided that no Lender shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly required to purchase a participating interest in any Swing Line Loan first advanced after the Swing Line Lender has actual knowledge of an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Lender, provided that no Lender shall be required to repay such outstanding purchase a participating interest in any Swing Line Loan. Each Lender irrevocably agrees , if the aggregate outstanding principal amount of all Swing Line Loans exceeds $10,000,000; or (v) any other circumstance, happening or event whatsoever, whether or not similar to make a Revolving Credit Loan pursuant any of the foregoing.
(f) Notwithstanding anything contained in this Agreement to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by contrary, the Swing Line Lender notwithstandingLoan facility contained in this Section 2.14 shall terminate immediately upon: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, Wachovia's removal or resignation as Administrative Agent; or (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount termination of the Revolving Credit Commitments (whether at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”maturity or otherwise). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.Article III
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Swing Line Loans. (a) Subject to the terms and conditions hereofset forth herein (including Section 2.19), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swing Line Swingline Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) Swingline Loans to the Borrower from time to time during the Swing Line Commitment Revolving Availability Period. Swing Line Loans , denominated in dollars, in an aggregate principal amount at any time outstanding that will not result in (i) may be repaid and reborrowed in accordance with the provisions hereof, outstanding Swingline Loans of the Swingline Lender exceeding its Swingline Commitment or (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure aggregate Revolving Exposures exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in aggregate Revolving Commitments; provided that the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Swingline Lender shall not be obligated required to make any Swing Line a Swingline Loan at a time when (x) to refinance an outstanding Swingline Loan or (y) if any Lender shall be in default of its obligations under this Agreement unless is at that time a Defaulting Lender and after giving effect to Section 2.19(a)(iv), any Defaulting Lender Fronting Exposure remains outstanding. Within the Swing Line Lender has entered into arrangements satisfactory to it foregoing limits and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice subject to the Swing Line Lender terms and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Swingline Lender of such request (i) by telephone (confirmed in Sections 5 and/or 6writing), as applicablenot later than 1:00 p.m., have New York time, or, if agreed by the Swingline Lender, 2:00 p.m., New York time or (ii) by facsimile or other electronic transmission (confirmed by telephone), not been satisfied later than 1:00 p.m., New York time, or, if agreed by the Swingline Lender, 2:00 p.m., New York time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and such conditions remain unsatisfied as shall specify the requested date (which shall be a Business Day), the amount of the requested time of Swingline Loan and (x) if the making of such Loan. Each Swing Line Loan shall funds are not to be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant credited to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an a general deposit account of the Borrower maintained with the Swing Line Swingline Lender.
(b) On any Domestic Business Day, the Swing Line location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender mayshall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower maintained with the Swingline Lender or such other deposit account identified by Borrower (or, in its sole discretionthe case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), give notice by remittance to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h)applicable Issuing Bank) by 3:00 p.m., (i) or (j))New York time, in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving requested date of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Swingline Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon The Swingline Lender may by written notice given to the Administrative Agent not later than 1:00 p.m., New York time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice and such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt by a Lender of notice from as provided above, to *Confidential Treatment Requested. Omitted portions filed with the Commission. pay to the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its Swing Line Participation Amount at obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the office occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds in the applicable currency, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (with references to 12:00 noon, New York time, in such Section being deemed to be references to 3:00 p.m., New York time) (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent specified in Section 11.2, in lawful money of shall promptly remit to the United States and in immediately available fundsSwingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall deliver notify the payments made by each Lender Borrower of any participations in any Swingline Loan acquired pursuant to the immediately preceding sentence this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and not to the Swing Line Swingline Lender. Any amounts received by the Swingline Lender from and against any and all losses, liabilities the Borrower (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure or other Person on behalf of the part Borrower) in respect of such a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to pay, or from the Administrative Agent; any delay in paying, such amounts received by the Administrative Agent any amount such Lender is required shall be promptly remitted by notice from the Administrative Agent to pay in accordance with the Revolving Lenders that shall have made their payments pursuant to this Section (except in respect of lossesparagraph and to the Swingline Lender, liabilities as their interests may appear, provided that any such payment so remitted shall be repaid to the Swingline Lender or other obligations suffered by the Administrative Agent or the Swing Line LenderAgent, as the case may be, resulting and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) The Borrower may, at any time and from the gross negligence time to time, designate as additional Swingline Lenders one or willful misconduct more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of the Administrative Agent or the Swing Line Lenderan appointment as a Swingline Lender hereunder shall be evidenced by an agreement, as the case may be), which shall be in form and such Lender shall pay interest substance reasonably satisfactory to the Administrative Agent for and the account Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of the Swing Line Lender from the date such amount was due until paid in fullacceptance, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from such Revolving Lender shall have all the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, rights and obligations of a Swingline Lender under this Agreement and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments references herein to the Swing Line term “Swingline Lender” shall be deemed to include such Revolving Lender upon receipt thereof in like funds its capacity as receiveda lender of Swingline Loans hereunder.
(e) Whenever The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent is reimbursed by Agent. Any such termination shall become effective upon the Borrower for earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the account fifth Business Day following the date of the Swing Line delivery thereof, provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender for shall have been reduced to zero. Notwithstanding the effectiveness of any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Sectiontermination, the Administrative Agent will promptly remit such payment terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such Lendertermination, but shall not make any additional Swingline Loans. *Confidential Treatment Requested. Omitted portions filed with the Commission.
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Swing Line Loans. (a) Subject During the Commitment Period, the Swing Line Lender agrees, subject to the terms and conditions hereofset forth herein and in reliance upon the agreements of the other Lenders set forth herein, the Swing Line Lender agrees to make revolving credit loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during on any Business Day; provided that (i) the aggregate principal amount of Swing Line Loans shall not exceed SIXTY MILLION DOLLARS ($60,000,000) (as such amount may be increased or decreased in accordance with the provisions hereof, the “Swing Line Committed Amount”), (ii) with respect to the Lenders collectively, the aggregate principal amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed Amount, (iii) with regard to each Lender individually, such Lender’s Revolving Commitment PeriodPercentage of Revolving Obligations shall not exceed its respective Revolving Committed Amount, and (iv) the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Swing Line Loans (i) shall be comprised solely of Loans bearing interest based on the Daily Floating Eurodollar Rate, or the Base Rate, as provided in Section 2.08(a)(iii), and may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in . Immediately upon the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance making of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line each Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocablyto, and severally (hereby irrevocably and not jointly) unconditionally agrees to, purchase from the Swing Line Lender a participation interest in the outstanding such Swing Line Loans (including accrued interest thereon) Loan in an amount equal to the product of its such Lender’s Revolving Commitment Percentage and the outstanding balance of the thereof. No Swing Line Loans Loan shall remain outstanding for longer than ten (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents10) days.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each U.K. Swing Line Loan shall be due and payable paid in full by the relevant Global Borrower on or before the day (the “Swing Line Maturity Date”) being the earliest of date that is the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each such U.K. Swing Line Loan and shall bear interest at be prepaid if required in connection with the Negotiated Rate applicable theretoprovisions of Section 2.3(B)(ii). The Outstanding U.K. Swing Line Lender shall disburse Loans may be repaid from the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account Syndicated Global Advances. Any repayment or prepayment of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding a U.K. Swing Line Loan shall be funded with accompanied by accrued interest thereon and, subject to Section 2.9.3(a), shall be in the minimum amount of $50,000 or the Equivalent Amount in the relevant U.K. Swing Line Currency (or such lesser amount as may be agreed to by the Global Swing Line Lender) and in increments of $50,000 or the Equivalent Amount in the relevant U.K. Swing Line Currency (or such lesser amount as may be agreed to by the Global Swing Line Lender) in excess thereof or the full amount of such U.K. Swing Line Loan. Any prepayment or repayment of a borrowing U.K. Swing Line Loan other than at the end of Revolving Credit Loans (provided that the applicable Interest Period shall be for the full amount thereof and shall be accompanied by all amounts payable pursuant to Section 3.4. If any Global Borrower at any time fails to repay a U.K. Swing Line Loan on the applicable date when due, such notice Borrower shall be deemed to have been automatically given upon the occurrence of elected to borrow a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in Syndicated Global Advance which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on a Eurocurrency Rate Advance in the Domestic Business Day immediately succeeding the giving applicable Agreed Currency under Section 2.1 as of such noticedate equal in amount to the unpaid amount of such U.K. Swing Line Loan (notwithstanding the minimum amount of Eurocurrency Rate Advances). The proceeds of each Mandatory Borrowing any such Advance shall be remitted directly to the Swing Line Lender used to repay such outstanding U.K. Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in Unless the amount and in Global Administrative Agent upon the manner specified in request of or with the preceding sentence and on consent of the date specified in writing by Required Lenders shall have notified the Global Swing Line Lender notwithstanding: (iprior to such Global Swing Line Lender making any U.K. Swing Line Loan, that the applicable conditions precedent set forth in Article IV have not then been satisfied, each Syndicated Global Lender’s obligation to make Syndicated Global Loans pursuant to Section 2.1 and this Section 2.9.3(d) whether to repay such U.K. Swing Line Loan shall be unconditional, continuing, irrevocable and absolute and shall not be affected by any circumstances, including the inability of any Borrower to satisfy the conditions precedent set forth in Article IV or the occurrence or continuance of a Default. In the event that any Syndicated Global Lender fails to make payment to the Global Administrative Agent of any amount due under this Section 2.9.3(d), the Global Administrative Agent shall be entitled to receive, retain and apply against such obligation the principal and interest otherwise payable to such Syndicated Global Lender hereunder until the Global Administrative Agent receives such payment from such Syndicated Global Lender or such obligation is otherwise fully satisfied. In addition to the foregoing, if for any reason any Syndicated Global Lender fails to make payment to the Global Administrative Agent of any amount due under this Section 2.9.3(d), such Mandatory Borrowing complies with Syndicated Global Lender shall be deemed, at the minimum amount for Loans otherwise required hereunderoption of the Global Administrative Agent, (ii) whether any condition specified to have unconditionally and irrevocably purchased from the Global Swing Line Lender, without recourse or warranty, an undivided interest in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) and participation in the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) applicable U.K. Swing Line Loan in the amount of the Commitments at Syndicated Global Loan such time.
(c) Upon each receipt by a Syndicated Global Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal was required to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower make pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be2.9.3(d), and such interest and participation may be recovered from such Syndicated Global Lender shall pay together with interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, thereon at a rate of interest per annum, whether before or after judgment, equal to (i1) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus in the case of Loans denominated in Dollars and (2%) the Overnight Foreign Currency Rate in the case of Loans denominated in any other U.K. Swing Line Currency, payable upon in each case for each day during the period commencing on the date of demand by the Swing Line Lender. The Global Administrative Agent shall distribute and ending on the date such interest payments to the Swing Line Lender upon receipt thereof in like funds as receivedobligation is fully satisfied.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject The Borrower may prior to the terms and conditions hereofRevolving Credit Maturity Date, as set forth in this Section, request the Swing Line Lender agrees to make loans under this Agreement (each a “make, and the Swing Line Loan” andLender prior to the Revolving Credit Maturity Date will make, collectivelySwing Line Loans to the Borrower, in an aggregate principal amount at any one time outstanding, not exceeding $10,000,000, provided that:
(i) there may be no more than two (2) different Interest Periods for Swing Line Loans outstanding at the “same time;
(ii) the aggregate principal amount of all Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance , together with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance amount of all outstanding Revolving Credit Loans and Letter of Credit Obligations, at any one time outstanding shall not at any one time exceed the aggregate amount of the Revolving Credit Commitments of all of the Banks at such time or the Revolving Credit Availability in effect at such time; and
(iii) the aggregate principal amount of all Swing Line Loans, together with all outstanding Revolving Credit Loans exceeding made by the Swing Line CommitmentLender plus its pro rata share of the Letter of Credit Obligations, at any one time outstanding shall not exceed the Revolving Credit Commitment of the Swing Line Lender.
(b) When the Borrower wishes to request a Swing Line Loan, it shall give the Agent notice substantially in the form of Exhibit O hereto (a "Swing Line Loan Request") so as to be received no later than 12:00 noon (Atlanta, Georgia time) on or before the date of the proposed Swing Line Borrowing proposed therein (or such other time and date as the Borrower and the Swing Line Lender may agree), specifying:
(i) the proposed date of such Swing Line Borrowing, which shall be a Domestic Business Day (the "Borrowing Date");
(ii) the aggregate amount of such Swing Line Borrowing, which shall be at least $1,000,000 (or in larger multiples of $100,000) but shall not cause the limits specified in Section 2.13
(a) to be violated; and
(iii) the duration of the Interest Period applicable thereto, which shall be 1 to 14 days. The Borrower may request Swing Line Loans for up to two (2) different Interest Periods in a single Swing Line Loan Request; provided that the request for each separate Interest Period shall be deemed to be a separate Swing Line Loan Request for a separate Swing Line Borrowing.
(c) The Swing Line Lender shall not be obligated to make any the amount of such Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory available to it and the Borrower to eliminate on such date by depositing the Swing Line Lender’s risk with respect to such defaulting Lender’s participation same, in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agentimmediately available funds, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the such Borrower maintained with the Swing Line Lender.
(bd) Subject to the limitations contained in this Agreement, the Borrower may borrow under this Section 2.13, prepay and reborrow under this Section 2.13 at any time before the Revolving Credit Maturity Date. Each Swing Line Loan included in any Swing Line Borrowing shall mature, and the principal amount thereof shall be due and payable, on the first to occur of: (i) the last day of the Interest Period applicable to such Swing Line Borrowing; or (ii) the Revolving Credit Maturity Date.
(e) At any time, upon the request of the Swing Line Lender, each Bank other than the Swing Line Lender shall, on the third Domestic Business Day after such request is made, purchase a participating interest in Swing Line Loans in an amount equal to its ratable share (based upon its respective Revolving Credit Commitment) of such Swing Line Loans. On any such third Domestic Business Day, each Bank will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation. Whenever, at any time after the Swing Line Lender mayhas received from any such Bank its participating interest in a Swing Line Loan, the Agent receives any payment on account thereof, the Agent will distribute to such Bank its participating interest in such amount (appropriately adjusted, in its sole discretionthe case of interest payments, give notice to reflect the period of time during which such Bank's participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Agent is required to be returned, such Bank will return to the Lenders Agent any portion thereof previously distributed by the Agent to it. Each Bank's obligation to purchase such participating interests shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation: (i) any set-off, counterclaim, recoupment, defense or other right which such Bank or any other Person may have against the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans Lender requesting such purchase or any other Person for any reason whatsoever; (provided that such notice shall be deemed to have been automatically given upon ii) the occurrence or continuance of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing the termination of the Revolving Credit Loans made as ABR Advances (each such borrowingCommitments, a “Mandatory Borrowing”), provided that no Bank shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly required to purchase a participating interest in any Swing Line Loan first advanced after the Swing Line Lender has actual knowledge of an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (iv) any breach of this Agreement by the Borrower or any other Bank, provided that no Bank shall be required to repay such outstanding purchase a participating interest in any Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) if the aggregate outstanding principal amount of all Swing Line Loans then outstandingexceeds $10,000,000; or (v) any other circumstance, (vi) the Aggregate Credit Exposure at such time and (vii) the amount happening or event whatsoever, whether or not similar to any of the Commitments at such timeforegoing.
(cf) Upon each receipt by a Lender of notice from Notwithstanding anything contained in this Agreement to the Administrative Agentcontrary, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation Loan facility contained in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities 2.13 shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.terminate immediately upon:
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and Wachovia's removal or resignation as Agent; or (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account termination of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderRevolving Credit Commitments (whether at maturity or otherwise).
Appears in 1 contract
Swing Line Loans. (a) (i) Subject to the terms and conditions hereofset forth herein, the Domestic Swing Line Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans under this Agreement (each such loan, a “Domestic Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Parent Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Domestic Swing Line Commitment Period. Sublimit; provided, however, that after giving effect to any Domestic Swing Line Loans Loan, (i) may be repaid the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance Outstanding Amount of the Revolving Loans of any Lender, plus such Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make exceed such Lender's Revolving Commitment, and provided, further, that the Parent Borrower shall not use the proceeds of any Domestic Swing Line Loan at a time when to refinance any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such outstanding Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if Within the Administrative Agentforegoing limits, or any Lender by notice and subject to the Swing Line Lender other terms and conditions hereof, the Parent Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loanmay borrow under this Section 2.04, shall have determined that the conditions set forth in Sections 5 and/or 6prepay under Section 2.05, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loanreborrow under this Section 2.04. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Domestic Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h)interest, (i) unless otherwise agreed by the Parent Borrower and the Domestic Swing Line Lender, at a rate based on the Daily Floating Eurodollar Rate or (j)), in which case ii) at a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata rate based on each such Lender’s Commitment Percentage on the Base Rate. Immediately upon the making of a Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each , each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunderto, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice purchase from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Domestic Swing Line Lender a risk participation in the outstanding such Domestic Swing Line Loans (including accrued interest thereon) Loan in an amount equal to the product of its Commitment such Lender's Applicable Percentage and times the outstanding balance amount of the such Domestic Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan DocumentsLoan.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans The Borrower may borrow under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. pursuant to Section 2.3, provided that the Borrower shall notify the Administrative Agent and a Swing Line Loans Lender, which notice may be given by: (A) telephone or (B) a Borrowing Request; provided that any telephonic notice must be confirmed promptly by delivery to the Administrative Agent and a Swing Line Lender of a Borrowing Request. Each such Borrowing Request shall be irrevocable and must be received by no later than 3:00 p.m. on the requested Borrowing Date (or, (x) with respect to Alternative Currency denominated Swing Line Loans, no later than 3:00 p.m. on the Business Day immediately preceding the requested Borrowing Date, and (y) with respect to a Borrowing Request submitted to MUFG as Swing Line Lender, 8.00 a.m. on the Business Day immediately preceding the requested Borrowing Date), specifying (i) may the currency and aggregate principal amount to be repaid and reborrowed in accordance with borrowed under the provisions hereofSwing Line Commitment, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amountrequested Borrowing Date, and (iii) shall notthe amount of, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day length of the Swing Line Interest Period applicable for, each Swing Line Loan, provided, however, that no such Swing Line Interest Period shall end after the fifth Business Day prior to the Revolving Credit Maturity Date. Such Swing Line Lender will then, subject to its agreement with the Borrower on the Negotiated Rate to be applied thereto, make the date requested amount available promptly on which the requested Borrowing Date, to the Administrative Agent who, thereupon, will promptly make such amount available to the Borrower at the Administrative Agent’s Office by crediting the account of the Borrower at such office. Each borrowing of Swing Line Loans shall be in an aggregate principal amount equal to $1,000,000 or such amount plus a whole multiple of $500,000 in excess thereof or, if less, the unused portion of the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line LenderAmount.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (KOHLS Corp)
Swing Line Loans. (a) Subject to the terms and conditions hereofset forth in this Agreement, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, LOANS until the “Swing Line Loans”) to the Borrower Revolving Commitment Termination Date as Borrowers may from time to time during request; PROVIDED, HOWEVER, that the aggregate outstanding principal amount of Swing Line Loans shall not exceed the Swing Line Commitment Periodat any time; PROVIDED FURTHER that in no event shall the Outstanding Obligations at any time exceed the lesser of (x) the Combined Commitments then in effect and (y) an amount equal to 300% of the Free Corporate Cash Flow for the four fiscal quarter period most recently ended on or before such time of determination. Swing Line Loans (i) may be repaid shall constitute Loans for all purposes hereunder. Subject to the foregoing and reborrowed in accordance with the provisions other terms and conditions hereof, (ii) shall notBorrowers may borrow, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, prepay and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all reborrow Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions as set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of herein until the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Revolving Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration Termination Date without premium or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lenderpenalty.
(b) On any Domestic Business Day, the Swing Line Loans made by Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding shall be evidenced by a loan account or records maintained by Swing Line Loan Lender in the Ordinary Course of Business. Upon the request of Swing Line Lender, Swing Line Lender's Swing Line Loans may be evidenced by a Swing Line Note, instead of or in addition to loan accounts. Swing Line Lender may attach schedules to its Swing Line Note and endorse thereon the date, amount and maturity of its Swing Line Loans and payments with respect thereto. Such loan accounts, records or Swing Line Note shall be funded with a borrowing conclusive absent manifest error of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving amount of such noticeSwing Line Loans and payments thereon. The proceeds Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the obligation of each Mandatory Borrowing shall be remitted directly Borrowers to pay any amount owing with respect to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such timeLoans.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Apartment Investment & Management Co)
Swing Line Loans. (a) Subject to the terms and conditions hereofset forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Administrative Agent for administrative convenience, Administrative Agent, Lenders holding Revolving Commitments and Swing Line Lender agrees agree that in order to make loans under facilitate the administration of this Agreement (each a “Agreement, Swing Line Loan” andLender may, collectivelyat its election and option made in its sole discretion cancelable at any time for any reason whatsoever, the make swing loan advances (“Swing Line Loans”) available to the Borrower Borrowers as provided for in this Section 2.03 at any time or from time to time during after the date hereof to, but not including, the expiration of the term of this Agreement, in an aggregate principal amount up to but not in excess of the Swing Line Commitment Period. Sublimit, provided that the outstanding aggregate principal amount of Swing Line Loans and the Revolving Loans at any one time outstanding shall not exceed an amount equal to the lesser of (i) may be repaid and reborrowed in accordance with the provisions hereof, Maximum Revolving Loan Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Formula Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all . All Swing Line Loans exceeding shall be Base Rate Loans only. Borrowers may borrow (at the option and election of Swing Line Commitment. The Lender), repay and, at the option and election of Swing Line Lender, re-borrow Swing Line Loans and Swing Line Lender shall not be obligated to may make any Swing Line Loan at a time when any Lender shall be Loans as provided in default of its obligations under this Agreement unless Section 2.03 during the period between Settlement Dates. All Swing Line Lender has entered into arrangements satisfactory to it and Loans shall, at the Borrower to eliminate the request of Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make , be evidenced by a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day secured promissory note (the “Swing Line Maturity DateNote”) being substantially in the earliest of the last day of the form attached hereto as Exhibit B-4. Swing Line Interest Period applicable thereto, the date on which the Lender’s agreement to make Swing Line Commitment Loans under this Agreement shall have been voluntarily terminated by the Borrower in accordance with Section 2.6not create any duty or obligation, and the date on which the Loans shall become due and payable or establish any course of conduct, pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The which Swing Line Lender shall disburse the proceeds of thereafter be obligated to make Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lenderfuture.
(b) On Upon either (i) any Domestic Business Dayrequest by the Borrower Representative for a Revolving Loan made pursuant to Section 2.02(b)(i) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Loan pursuant to the provisions of the last sentence of Section 2.02(b)(i) hereof, the Swing Line Lender maymay elect, in its sole discretion, give notice to advance same day funds to Borrowers as a Swing Line Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Line Lender may not make Swing Line Loans if Swing Line Lender has been notified by Administrative Agent or by Required Lenders and that one or more of the Borrower that such outstanding applicable conditions set forth in Section 3.02 of this Agreement have not been satisfied or waived or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon whether before or after the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case and regardless of whether a borrowing of Revolving Credit Loans made as ABR Advances (each Settlement has been requested with respect to such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each ), each Lender irrevocably agrees to make holding a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional deemed, without further action by any party hereto, to have unconditionally and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice irrevocably purchased from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the immediately preceding sentence to the Swing Line Lender promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may bewithout recourse or warranty, resulting from the gross negligence or willful misconduct of the Administrative Agent or the an undivided interest and participation in such Swing Line Lender, as the case may be), and such Lender shall pay interest Loan in proportion to the Administrative Agent for the account of the its Revolving Commitment Percentage. Swing Line Lender from or Administrative Agent may, at any time, require the date Lenders holding Revolving Commitments to fund such amount was due until paid participations by means of a Settlement as provided for in fullSection 2.05(d) below. From and after the date, if any, on the unpaid portion thereof, at which any Lender holding a rate of interest per annum, whether before or after judgment, equal Revolving Commitment is required to (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Ratefund, and (ii) thereafterfunds, the Federal Funds Effective Rate plus 2%, payable upon demand by the its participation in any Swing Line Lender. The Loans purchased hereunder, Administrative Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest payments to the and all proceeds of Collateral received by Administrative Agent in respect of such Swing Line Loan; provided that no Lender upon receipt thereof holding a Revolving Commitment shall be obligated in like funds as received.
any event to make Revolving Loans in an amount in excess of its Revolving Commitment amount minus its Participation Commitment (etaking into account any reallocations under Section 2.20) Whenever the Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such LenderMaximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Fairmount Santrol Holdings Inc.)
Swing Line Loans. (a) Subject to By telephonic notice, promptly followed (within three Business Days) by the terms and conditions hereoffacsimile delivery of a confirming Borrowing Request, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender on or before 11:00 a.m., New York time, on a Business Day, any Borrower may from time to time irrevocably request that Swing Line Loans be made by the Swing Line Lender in an aggregate minimum principal amount of $500,000 and an integral multiple of $100,000. Each request by any Borrower for a Swing Line Loan shall constitute a representation and warranty by the Borrower no later than one Domestic Business Day prior to Borrowers that on the Borrowing Date with respect date of such request and (if different) the date of the making of the Swing Line Loan, both immediately before and after giving effect to such Swing Line Loan, shall have determined that Loan and the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as application of the requested time proceeds thereof, the statements made in Section 5.2.1 are true and correct. All Swing Line Loans shall be made as Base Rate Loans and shall not be entitled to be converted into LIBO Rate Loans. The proceeds of the making of such Loan. Each each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of made available by the Swing Line Interest Period applicable theretoLender, by its close of business on the date on which Business Day telephonic notice is received by it as provided in the Swing Line Commitment preceding sentences in immediately available funds, to the Borrower requesting the Loan by wire transfer or otherwise to and accounts such Borrower shall have been voluntarily terminated by the Borrower specified in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each its notice therefor.
(b) If (i) any Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The be outstanding for more than four full Business Days or (ii) after giving effect to any request for a Swing Line Lender shall disburse Loan or a Revolving Loan the proceeds aggregate principal amount of Revolving Loans and Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds outstanding to an account of the Borrower maintained Swing Line Lender, together with the Swing Line Lender.
(b) On any Domestic Business Day's Percentage of the Letter of Credit Outstandings, would exceed the Swing Line Lender's Percentage of the Revolving Loan Commitment Amount, the Swing Line Lender mayLender, at any time in its sole and absolute discretion, give notice to the Lenders may request each Lender that has a Revolving Loan Commitment, and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Domestic Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to , including the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees hereby agrees, to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) whether the amount of such Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether which shall always be initially funded as a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereonBase Rate Loan) in an amount equal to such Lender's Percentage of the product of its Commitment Percentage and the outstanding balance amount of the Swing Line Loans (each, a “the "Refunded Swing Line Participation Amount”)Loans") outstanding on the date such notice is given. Each Lender shall also be liable for an amount equal to On or before 11:00 a.m. (New York time) on the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or Event of Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each first Business Day following receipt by a each Lender of notice from a request to make Revolving Loans as provided in the Administrative Agentpreceding sentence, each such Lender shall promptly make available to the Administrative Agent for the account of (other than the Swing Line Lender its Swing Line Participation Amount at Lender) shall deposit in an account specified by the office of the Administrative Paying Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to the Lenders from time to time the amount so requested in same day funds, whereupon such funds shall be immediately preceding sentence delivered to the Swing Line Lender promptly upon receipt thereof in like funds as received(and not a Borrower) and applied to repay the Refunded Swing Line Loans. Each Lender hereby indemnifies and agrees to hold harmless On the Administrative Agent and day such Revolving Loans are made, the Swing Line Lender from Lender's Percentage of the Refunded Swing Line Loans shall be deemed to be paid. Upon the making of any Revolving Loan pursuant to this clause, the amount so funded shall become due under such Lender's Revolving Note and against shall no longer be owed under the Swing Line Note. Each Lender's obligation to make the Revolving Loans referred to in this clause shall be absolute and unconditional and shall not be affected by any and all lossescircumstance, liabilities including, without limitation, (including liabilities for penalties)i) any set-off, actionscounterclaim, suitsrecoupment, judgments, demands, costs and expenses resulting from any failure on the part of defense or other right which such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or may have against the Swing Line Lender, as any Borrower or any other Person for any reason whatsoever; (ii) the case may beoccurrence or continuance of any Default; (iii) any adverse change in the condition (financial or otherwise) of any Borrower or any other Obligor, resulting from including a reduction in the gross negligence or willful misconduct Borrowing Base Amount subsequent to the date of the Administrative Agent making of any Swing Line Loan; (iv) the acceleration or maturity of any Loans or the termination of the Revolving Loan Commitment after the making of any Swing Line Loan; (v) any breach of this Agreement by any Borrower or any other Lender; or (vi) any other circumstance, as the case may be)happening or event whatsoever, and such Lender shall pay interest whether or not similar to the Administrative Agent for the account any of the Swing Line Lender from foregoing.
(c) In the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to event that (i) from the date such amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Administrative Agent is reimbursed by the Borrower for the account any of the Swing Line Lender for Borrowers or any payment of their Subsidiaries is subject to any bankruptcy or insolvency proceedings as provided in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly remit such payment to such Lender.Section 8.1.9 or
Appears in 1 contract
