Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor. (b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. (c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Revolving Credit Agreement (Total Renal Care Holdings Inc)
Swing Line Loans. (a) Subject Notwithstanding any other provision of this Agreement to the terms and conditions of this Agreementcontrary, the NationsBank shall make available Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") Loans to the Borrower in Dollars from time ---------------- prior to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Revolving Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche CommitmentsTermination Date. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) The Swing Line Lender NationsBank 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 Business Day prior to the Borrowing Date with respect making of Revolving Credit Loans set forth in this Agreement, (ii) if after giving effect to such Swing Line Loan, the Swing Line Outstandings would exceed $25,000,000, or (iii) if after giving effect to such Swing Line Loan, the sum of all Outstandings would exceed the Total Revolving Credit Commitment.
(b) Each provision of Section 2.01(c) hereof applicable to Base Rate Loans shall have determined that the conditions set forth be applicable in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such all respects to each Swing Line Loan. Each Swing Line Loan shall be due and payable on Borrowing Notice submitted to the day being the earliest of the last day of the Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance Administrative Agent with Section 2.6, and the date on which the respect to Swing Line Loans shall become due specify, in addition to the items required by Section 2.01(c)(i) hereof, that such Advance is a Swing Line Loan and payable the applicable Swing Line Rate. All Advances made pursuant to this Section 2.02 shall bear interest at the provisions hereof, whether by acceleration or otherwiseapplicable Swing Line Rate.
(c) On All Advances made by NationsBank under the Swing Line pursuant to this Section 2.02 outstanding on any Business Day on which day shall be in the minimum principal amount of $500,000 and any integral multiple of $100,000 in excess thereof.
(d) The Borrower and each Lender acknowledge that all Swing Line Loans are to be made solely by NationsBank to the Borrower but that such Lender shall share the risk of loss with respect to such Advances by purchasing from NationsBank a Participation in such Swing Line Loan in an amount equal to such Lender's Applicable Commitment Percentage of such Swing Line Loan. Upon demand made by NationsBank, each Lender shall, according to such Lender's Applicable Commitment Percentage of such Swing Line Loan, promptly provide to NationsBank its purchase price therefor in an amount equal to its Participation therein. Any advance made by a Lender pursuant to demand of NationsBank of the purchase price of its Participation shall remain unpaidbe deemed a Base Rate Loan under the Revolving Credit Facility unless the Borrower converts such Base Rate Loan in accordance with Section 2.11 hereof. The obligation of each Lender to so provide its purchase price to NationsBank shall be absolute and unconditional and shall not be affected by the occurrence of an Event of Default or any other occurrence or event.
(e) Borrower at its option may request an Advance as a Revolving Credit Loan pursuant to Section 2.01(a) hereof in an amount sufficient to repay any or all Swing Line Loans on any date and the Administrative Agent shall upon the receipt of such Advance, provide to NationsBank the amount necessary to repay such Swing Line Loan or Loans (which NationsBank shall then apply to such repayment) and credit any balance of such Revolving Credit Loan in immediately available funds to an account designated by the Borrower. The proceeds of such Advances shall be paid to NationsBank for application to the Swing Line Lender may, in its sole discretion, give notice to Outstandings and the Participations therein purchased by the Lenders having a Revolving Tranche Commitment pursuant to Section 2.02(d) above, and the Borrower that such outstanding Swing Line Loan Lenders shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall then be deemed to have been automatically given upon made Revolving Credit Loans in the amount of such Advances. The Swing Line shall continue in effect until the earlier of (i) occurrence and continuation of a Default or an Event of Default, or (ii) the Revolving Credit Termination Date. The Swing Line shall be reinstated at the time any Default or Event of Default under Sections 9.1(h) or (i))is cured, in which case a borrowing of provided that the Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may Credit Termination Date has not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeoccurred.
Appears in 1 contract
Swing Line Loans. (a) Subject In addition to the other options available to Borrower hereunder, up to $15,000,000 of the Swing Line Lender's Commitment, shall be available for Swing Line Loans subject to the following terms and conditions. Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.11 hereof. All Swing Line Loans shall bear interest at the CBR Rate. In no event shall the Swing Line Lender be required to fund a Swing Line Loan if it would increase the total aggregate outstanding Loans by Swing Line Lender hereunder to an amount in excess of its Commitment. Upon request of the Swing Line Lender, each Lender irrevocably agrees to purchase its Percentage of any Swing Line Loan made by the Swing Line Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of an Default hereunder (provided Swing Line Lender had no knowledge of an Default at the time the Swing Line Loan was funded) provided no Lender shall be required to have total outstanding Loans in an amount greater than its Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Loan made by the purchasing Lender and not by the selling Lender for all purposes under this Agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the Swing Line Lender and all such amounts accruing on or attributable to such Loans for the period from and after the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the purchasing Lender. If prior to purchasing its Percentage in a Swing Line Loan one of the events described in Section 9.6 or 9.7 shall have occurred and such event prevents the consummation of the purchase contemplated by preceding provisions, each Lender will purchase an undivided participating interest in the outstanding Swing Line Loan in an amount equal to its Percentage of such Swing Line Loan. From and after the date of each Lender's purchase of its participating interest in a Swing Line Loan, if the Swing Line Lender receives any payment on account thereof, the Swing Line Lender agrees will distribute to make swing line loans such Lender its participating interest in such amount (each a "Swing Line Loan" andappropriately adjusted, --------------- collectivelyin the case of interest payments, to reflect the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to period of time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line which such Lender's Credit Exposure would not exceed participating interest was outstanding and funded); provided, however, that in the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 event that such payment was received by the Swing Line Lender has entered into arrangements satisfactory and is required to it and be returned to 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 Borrower, each Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice return to the Swing Line Lender and any portion thereof previously distributed by the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such LoanLender to it. Each No Swing Line Loan shall be due outstanding for more than five (5) days at a time and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwisenot be outstanding for more than a total of ten (10) days during any month.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Unsecured Revolving Credit Agreement (Susa Partnership Lp)
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees may, but shall not be obligated to make swing line loans in reliance upon the agreements of the other Lenders set forth in this Section 2.04 in Dollars (each such loan, a "“Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"”) to the Borrower in Dollars Borrowers from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and Letter of Credit Obligations of the Revolving Credit Lender acting as Swing Line Lender, may exceed the amount of such Revolving Credit Lender’s Revolving Credit Commitment; provided, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Total Revolving Credit Exposure would Outstandings shall not exceed the Swing Line Lender's Revolving Tranche CommitmentMaximum Borrowing Amount, and (ii) the aggregate unpaid balance Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, and provided, further, that the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits and subject to the discretion of the Swing Line Loans would not exceed the Lender to make Swing Line CommitmentLoans, and (iii) subject to the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodother terms and conditions hereof, the Borrower Borrowers may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.06(a)(ii), and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan2.04. Each Swing Line Loan shall be due and payable on a Base Rate Revolving Credit Loan. Immediately upon the day being the earliest making of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan Loan, each Revolving Credit Lender shall remain unpaidbe deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender may, a risk participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed in an amount equal to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving product 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) Credit Lender’s Applicable Percentage times the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeSwing Line Loan.
Appears in 1 contract
Samples: Credit Agreement (Roadrunner Transportation Systems, Inc.)
Swing Line Loans. (a) Subject In addition to the other options available to Borrower hereunder, up to $20,000,000 of the Swing Line Lender's Commitment, shall be available for Swing Line Loans subject to the following terms and 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 CBR Rate. In no event shall the Swing Line Lender be required to fund a Swing Line Loan if it would increase the total aggregate outstanding Loans by Swing Line Lender hereunder plus its Percentage of Facility Letter of Credit Obligations to an amount in excess of its Commitment. Upon request of the Swing Line Lender, each Lender irrevocably agrees to purchase its Percentage of any Swing Line Loan made by the Swing Line Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of a Default hereunder provided that such Default did not exist at the time the Swing Line Loan was made and provided further that no Lender shall be required to have total outstanding Loans plus its Percentage of Facility Letters of Credit to be in an amount greater than its Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Loan made by the purchasing Lender and not by the selling Lender for all purposes under this Agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the Swing Line Lender and all such amounts accruing on or attributable to such Loans for the period from and after the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the purchasing Lender. If prior to purchasing its Percentage in a Swing Line Loan one of the events described in SECTION 8.7 or 8.8 shall have occurred and such event prevents the consummation of the purchase contemplated by preceding provisions, each Lender will purchase an undivided participating interest in the outstanding Swing Line Loan in an amount equal to its Percentage of such Swing Line Loan. From and after the date of each Lender's purchase of its participating interest in a Swing Line Loan, if the Swing Line Lender receives any payment on account thereof, the Swing Line Lender agrees will distribute to make swing line loans such Lender its participating interest in such amount (each a "Swing Line Loan" andappropriately adjusted, --------------- collectivelyin the case of interest payments, to reflect the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to period of time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line which such Lender's Credit Exposure would not exceed participating interest was outstanding and funded); provided, however, that in the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 event that such payment was received by the Swing Line Lender has entered into arrangements satisfactory and is required to it and be returned to 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 Borrower, each Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice return to the Swing Line Lender and any portion thereof previously distributed by the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such LoanLender to it. Each No Swing Line Loan shall be due outstanding for more than five (5) days at a time and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwisenot be outstanding for more than a total of ten (10) days during any month.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Revolving Credit Agreement (Duke Weeks Realty Limited Partnership)
Swing Line Loans. (a) Subject to the terms and conditions of set forth in this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower Loans in Dollars until, but not including the Maturity Date in such amounts as Borrower may from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitmentrequest; provided, provided however, that immediately after making each Swing Line Loan, (i) the aggregate principal amount of all Swing Line Lender's Credit Exposure would Loans shall not exceed the Swing Line Lender's Revolving Tranche CommitmentSublimit at any time, (ii) the aggregate unpaid balance Outstanding Obligations of the Swing Line Loans would each Lender shall not exceed the Swing Line Commitment, such Lender's Commitment at any time and (iii) the Aggregate Revolving Tranche Exposure Outstanding Obligations of all Lenders would shall not exceed the Aggregate Revolving Tranche Commitmentscombined Commitments at any time. During This is a revolving credit and, subject to the Swing Line Commitment Periodforegoing and the other terms and conditions hereof, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this AgreementLoans as set forth herein without premium or penalty. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefora Base Rate Loan.
(b) The Unless notified to the contrary by Swing Line Lender, Borrower may irrevocably request a Swing Line Loan in the Minimum Amount therefor upon Requisite Notice to Swing Line Lender not later than the Requisite Time therefor. Each such request for a Swing Line Loan shall constitute a representation and warranty by Borrower that the conditions set forth in Sections 4.02(a) and (b) are satisfied. Promptly after receipt of such request, Swing Line Lender shall obtain telephonic verification from Administrative Agent that such Swing Line Loan is permitted hereunder. Upon receiving such verification, Swing Line Lender shall make such Swing Line Loan available to Borrower. Upon the making of each Swing Line Loan, each Lender shall be deemed to have purchased from Swing Line Lender a risk participation therein in an amount equal to such Lender's Pro Rata Share times the amount of the Swing Line Loan.
(c) Swing Line Lender shall be responsible for invoicing Borrower (or notifying Administrative Agent to so invoice Borrower) for interest on the Swing Line Loans. Unless and until there is a funding by Lenders of their participation therein, the interest payable on Swing Line Loans is solely for the account of Swing Line Lender.
(d) Borrower shall repay each Swing Line Loan not later than the Requisite Time for payments hereunder on the earliest of (i) demand made by Swing Line Lender (with a copy to Administrative Agent) and (ii) the Maturity Date. Payments shall be obligated made to make Administrative Agent for the account of Swing Line Lender. If the conditions precedent set forth in Section 4.02 can be satisfied, Borrower may request a Borrowing of Loans to repay Swing Line Lender pursuant to Section 2.02.
(e) If Swing Line Lender does not timely receive (by payment or a Borrowing) any payment of principal of any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Loan, Swing Line Lender has entered into arrangements satisfactory to it shall notify Administrative Agent of such fact and the unpaid amount. Administrative Agent shall promptly notify each Lender of its Pro Rata Share of such unpaid amount by Requisite Notice, and each Lender shall make its Pro Rata Share of such unpaid amount available to Administrative Agent at Administrative Agent's Office not later than the Requisite Time. The obligation of each Lender to make such payment shall be absolute and unconditional and shall not be affected by the occurrence of any Event of Default or any other event. If the conditions precedent set forth in Section 4.02 can be satisfied (except for the giving of a Request for Extension of Credit) on any date Borrower is obligated to eliminate the but fails to, repay Swing Line Lender, the funding by Lenders pursuant to this subsection (e) shall be deemed to be a Borrowing of Base Rate Loans (without regard to the Minimum Amount therefor). If the conditions precedent set forth in Section 4.02 cannot be satisfied on such date, each Lender's risk with respect payment shall be deemed to be a funding of such defaulting Lender's participation in such Swing Line Loan. The , 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 will not make a Swing Line Loan if the Administrative Agentagainst Borrower in respect of such payment and shall share, or in accordance with that pro rata participation, in any Lender payment made by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, claim. Any amounts made available by a Lender under its participation shall have determined that not relieve or otherwise impair the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as obligation of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the repay Swing Line Lender mayfor any amount of Swing Line Loans, in its sole discretiontogether with interest as provided herein, give notice and such amounts made available shall be payable by Borrower upon demand of Administrative Agent, and shall bear interest at a rate per annum equal to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeRate.
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (Comcast Cable Communications Inc)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "Swing Line LoanSWING LINE LOAN" and, --------------- collectively, the "Swing Line LoansSWING LINE LOANS") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Section 6 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaidbear 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 having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Credit Loans (provided 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 (ij)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "Mandatory BorrowingMANDATORY BORROWING"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata PRO RATA based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 may not comply 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 Revolving Tranche 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 (CVS Corp)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's ’s risk with respect to such defaulting Defaulting Lender's ’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 Section 6 5 and/or Section 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaidbear 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 having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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 Section 9.1(h), (i) or (ij)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "“Mandatory Borrowing"”), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's ’s Commitment Percentage with respect to its Revolving Tranche Commitment 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.Lender
Appears in 1 contract
Samples: Credit Agreement (CVS Caremark Corp)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans in Dollars under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's ’s risk with respect to such defaulting Defaulting Lender's ’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, Agent or any Lender 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 Section 6 have not been satisfied or waived 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaidbear 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 having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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 Section 9.1(h), (i) or (ij)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "“Mandatory Borrowing"), -------------------- ”) shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's ’s Commitment Percentage with respect to its Revolving Tranche Commitment 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 may not comply 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 Revolving Tranche Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of a 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 2.2 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 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 a 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 Dollars 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 2.2 (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 2.2, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (CVS HEALTH Corp)
Swing Line Loans. (a) Subject In addition to the other options available to Borrower hereunder, up to $40,000,000 of the Swing Line Lender’s Commitment, shall be available for Swing Line Loans subject to the following terms and conditions of this Agreement, 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 swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 fund a Swing Line Loan if it would increase the Administrative Agent, or any Lender total aggregate outstanding Loans by notice to the Swing Line Lender and hereunder plus its Percentage of Facility Letter of Credit Obligations to an amount in excess of its Commitment or if it would cause the Borrower no later than one Business Day prior Allocated Facility Amount to exceed the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such LoanAggregate Commitment. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Borrowing Date for such Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaidLoan. In addition, the Swing Line Lender may, (i) may at any time in its sole discretion, give notice discretion with respect to the Lenders having a Revolving Tranche Commitment 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, 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 Tranche Loans unconditional, continuing, irrevocable and absolute and shall not be affected by any circumstances, including, without limitation, (provided that a) any set-off, 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 Unmatured Default, (c) any adverse change in the condition (financial or otherwise) of Default under Sections 9.1(h) the Borrower, or (i))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 Tranche 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 having Revolving Tranche Commitments pro rata based on each entitled to receive, retain and apply against such Lender's Commitment Percentage with respect obligation the principal and interest otherwise payable to its Revolving Tranche Commitment on such Lender hereunder until the Business Day immediately succeeding Administrative Agent receives such payment from such Lender or such obligation is otherwise fully satisfied. In addition to the giving 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing payment not made by such Lender, and such interest and participation may not comply be recovered from such Lender together with interest thereon at the minimum Federal Funds Effective Rate for each day during the period commencing on the date of demand and ending on the date such amount is received. Swing Line Loans may be outstanding for Loans otherwise required hereundera maximum of ten (10) days during any calendar month. On the Facility Termination Date, (ii) whether any condition specified the Borrower shall repay in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) full the Borrowing Date of such Mandatory Borrowing, (v) the aggregate outstanding principal amount of all Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount balance of the Commitments at such timeSwing Line Loans.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, and further subject to the agreement of the Swing Line Lender and the Borrower with respect to the Negotiated Rate to be applied, the Swing Line Lender agrees to make swing line loans (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time on any Business Day during the Swing Line Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed (but excluding the Swing Line Commitmentten consecutive Business Days immediately preceding the Revolving Credit Maturity Date), provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line CommitmentCommitment Amount, and (iiiii) the Aggregate Revolving Tranche Credit Exposure of all Lenders would not exceed the Aggregate Revolving Tranche CommitmentsCredit Commitment Amount. During the Swing Line Commitment Periodforegoing period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 ’s risk with respect to such defaulting Lender's ’s participation in such Swing Line LoanLoan shall have been made for the benefit of the Swing Line Lender and such arrangements are satisfactory to the Swing Line Lender. The Swing Line Lender will shall not make a Swing Line Loan if the Administrative Agentif, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, it shall have determined received written notice from any Credit Party that the conditions set forth in Section 6 with respect thereto have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwisesatisfied.
(c) On The Swing Line Lender may by written notice given to the Administrative Agent not later than 10:00 a.m. on any Business Day on which a Swing Line Loan shall remain unpaid, notify the Administrative Agent that the Swing Line Lender mayis requesting that each Lender, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded Administrative Agent may (with a borrowing the consent of Revolving Tranche 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(hRequired Lenders) or shall (i)), in which case a borrowing at the request of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made Required Lenders) by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly written notice given to the Swing Line Lender to repay such outstanding not later than 10:00 a.m. on any Business Day require that each Lender, at the option of the Swing Line LoanLender or the Administrative Agent, as the case may be, (i) make a Revolving Credit Loan in an amount equal to its Commitment Percentage of the outstanding principal balance of, and accrued and unpaid interest on, the Swing Line Loans, or (ii) purchase, unconditionally and irrevocably, without recourse or warranty, an undivided participating interest in the outstanding principal balance of, and accrued and unpaid interest on, the Swing Line Loans in an amount equal to its Commitment Percentage thereof. In either such case (i) the Administrative Agent shall notify each Lender of the details thereof and of the amount of such Lender’s Revolving Credit Loan or participation interest, as the case may be, and (ii) each Lender shall, whether or not any Default shall have occurred and be continuing, any representation or warranty shall be accurate, any condition to the making of any loan hereunder shall have been fulfilled, or any other matter whatsoever, make the Revolving Credit Loan required to be made by it, or purchase the participation required to be purchased by it, under this paragraph by wire transfer of immediately available funds to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, (A) in the event that such Lender receives such notice prior to 12:00 noon on any Business Day, by no later than 3:00 p.m. on such Business Day, or (B) in the event that such Lender receives such notice at or after 12:00 noon on any Business Day, by no later than 1:00 p.m. on the immediately succeeding Business Day. Any Loans made pursuant to this paragraph (c) shall, for all purposes hereof, be deemed to be Revolving Credit Loans referred to in Section 2.1 and made pursuant to Section 2.5, and the Lenders’ obligations to make such Loans shall be absolute and unconditional. The Administrative Agent will make such Loans, or the amount of such participations, as the case may be, available to the Swing Line Lender by promptly crediting or otherwise transferring the amounts so received, in like funds, to the Swing Line Lender. Each Lender having a Revolving Tranche shall also be liable for an amount equal to the product of its Commitment irrevocably agrees to make a Revolving Tranche Loan Percentage and any amounts paid by the Borrower pursuant to each Mandatory Borrowing in this Section 2.3 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be absolute and unconditional and without regard to the amount occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) Each Lender shall indemnify and in hold harmless the manner specified in Administrative Agent and the preceding sentence 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 to pay in accordance with this Section 2.3 (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, to the extent resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be, as determined by a court of competent jurisdiction in a final and non-appealable decision), and such Lender shall be required to pay interest to the Administrative Agent for the account of the Swing Line Lender from the date specified such amount was due until paid in writing full, on the unpaid portion thereof, at a rate of interest per annum equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Rate, and (ii) thereafter, the Federal Funds Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender notwithstanding: upon receipt thereof in like funds as received.
(ie) Whenever the amount of such Mandatory Borrowing may not comply with Administrative Agent is reimbursed by the minimum amount Borrower, 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 Revolving Tranche Exposure at such time and (vii) the amount account of the Commitments at Swing Line Lender, for any payment in connection with Swing Line Loans and such timepayment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Kohls Corporation)
Swing Line Loans. (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this AgreementSection 2.04, the Swing Line Swingline Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") Swingline Loans to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period Revolving Availability Period, denominated in dollars, in an aggregate principal amount at any one time outstanding that will not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, result in (i) the Swing Line Lender's Credit Exposure would not exceed outstanding Swingline Loans of the Swing Line Lender's Revolving Tranche Commitment, Swingline Lender exceeding its Swingline Commitment or (ii) the aggregate unpaid balance of Revolving Exposures exceeding the Swing Line Loans would aggregate Revolving Commitments; provided that the Swingline Lender shall not exceed be required to make a Swingline Loan (x) to refinance an outstanding Swingline Loan or (y) if any Lender 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 Commitment, foregoing limits and (iii) subject to the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodterms and conditions set forth herein, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period thereforSwingline Loans.
(b) The Swing Line To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender shall of such request by telephone (confirmed in writing) or by facsimile or other electronic transmission (confirmed by telephone), in each case, not be obligated to make any Swing Line Loan at a later than 12:00 noon, New York City time when any Lender on the day of such proposed Swingline Loan. Each such notice shall be in default of its obligations under this Agreement unless irrevocable and shall specify the Swing Line Lender has entered into arrangements satisfactory to it and requested date (which shall be a Business Day), 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as amount of the requested time Swingline Loan and (x) if the funds are not to be credited to a general deposit account of the making Borrower maintained with the Swingline Lender, the 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 LoanLC Disbursement. Each Swing Line The Swingline Lender shall make each Swingline Loan shall be due and payable 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 the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the day being the earliest requested date of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwisesuch Swingline Loan.
(c) On The Swingline Lender may by written notice given to the Administrative Agent not later than 1:00 p.m., New York City 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 a Swing Line Loan shall remain unpaidRevolving Lenders will participate. Promptly upon receipt of such notice, the Swing Line Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the currency and such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender mayhereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its 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 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 its sole discretionthe same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, give notice mutatis mutandis, to the payment obligations of the Revolving Lenders having a Revolving Tranche Commitment pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower that of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such outstanding Swing Line Swingline Loan shall be funded with made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect of a borrowing 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 the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Tranche Loans (Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear, provided that any such notice payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, 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 time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such acceptance, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder.
(e) 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. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof, provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been automatically given upon reduced to zero. Notwithstanding the occurrence effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Default or an Event of Default Swingline Lender under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage this Agreement with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of Swingline Loans made by it prior to such notice. The proceeds of each Mandatory Borrowing termination, but shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to not make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeadditional Swingline Loans.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to Bank may in its discretion make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during until the Termination Date or until the Swing Line Commitment Period is terminated in an aggregate principal amount at any one time outstanding not to exceed accordance with the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) terms hereof in the aggregate unpaid balance up to the amount of the Swing Line Loans would not exceed Commitment for periods requested by the Borrower and agreed to by the Swing Line CommitmentBank; provided, that, no Swing Line Loan shall be made if, after giving effect to the making of such Loan and (iii) the Aggregate Revolving Tranche simultaneous application of the proceeds thereof, the Total Exposure of all Lenders would not exceed the Aggregate Revolving Tranche CommitmentsTotal Commitment. During Within the Swing Line Commitment Periodforegoing limits, the Borrower may borrow, prepay in whole or in part repay and reborrow under the Swing Line Commitment, all subject to and in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period thereforlimitations hereof.
(b) 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 may request a Swing Line Loan if the Administrative Agent, to be made on any Business Day. Each request for a Swing Line Loan shall be in writing (or any Lender by notice telephone promptly confirmed in writing) and delivered to the Swing Line Lender Bank not later than 12:00 noon, 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) the requested borrowing date, (iii) whether the interest rate applicable to such Swing Line Loan is to be: (A) the Federal Funds Effective Rate plus seventy five basis points (.75%) or (B) an interest rate mutually agreed upon by the Borrower and the Borrower no Swing Line Bank and (iv) the date such Swing Line Loan is to be repaid (the "Swing Line Repayment Date"). The request for such Swing Line Loan shall be irrevocable. Provided that all applicable conditions precedent contained in Section 4.2 hereof have been satisfied, the Swing Line Bank shall, not later than one Business Day prior to 4:00 p.m., Philadelphia time, on the Borrowing Date with respect to date specified in the Borrower's request for such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and make such conditions remain unsatisfied as of the requested time of the making such Loan. Each 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 due and payable on the day being the earliest evidenced by a promissory note of the last day Borrower dated the date hereof, payable to the order of the Interest Period applicable thereto, Swing Line Bank in the date on which principal amount of the Swing Line Commitment and substantially in the form of Exhibit B-2 (as amended, supplemented or otherwise modified from time to time, the "Swing Line Note").
(d) Interest shall have been voluntarily terminated accrue on the outstanding principal balance of a Swing Line Loan at the interest rate chosen by the Borrower in accordance with Section 2.62.2(b) with respect to such Swing Line Loan and shall be payable on each applicable Interest Payment Date and upon the repayment of such Swing Line Loan.
(e) A Swing Line Loan shall be repaid on the earlier of (i) the Termination Date and (ii) the Swing Line Repayment Date for such Swing Line Loan. Unless the Borrower shall have notified the Agent prior to 11:00 a.m., Philadelphia time, on such Swing Line Repayment Date that the Borrower intends to repay such Swing Line Loan with funds other than the proceeds of a Revolving Credit Loan, the Borrower shall be deemed to have given notice to the Agent requesting the Banks to make a Revolving Credit Loan which shall be a Base Rate Borrowing in accordance with Section 2.1 on the Swing Line Repayment Date in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, and (A) subject to satisfaction or waiver of the conditions specified in Section 4.2, the Banks shall, on the Swing Line Repayment Date, make a Revolving Credit Loan which shall be a Base Rate Borrowing, 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 Base Rate Borrowing are not received by the Swing Line Bank on the Swing Line Repayment Date in an aggregate amount equal to the amount of such Swing Line Loan plus accrued interest, the Borrower shall reimburse the Swing Line Bank on the day immediately following the Swing Line Repayment 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 Base Rate Borrowing, if any, received plus accrued interest thereon.
(f) In the event that the Borrower shall fail to repay the Swing Line Bank as provided in Section 2.2(e) in an amount equal to the amount required under Section 2.2(e), 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 Commitment Percentage of such Swing Line Loan. 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 Base Rate for each day during the period between the Swing Line Repayment 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 Loans Repayment Date. The Agent shall become due and distribute to each Bank which has paid all amounts payable pursuant by it under this Section 2.2(f) with respect to the provisions hereofunpaid amount of any Swing Line Loan, whether such Bank's Commitment Percentage of all payments received by acceleration or otherwisethe 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 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.
(cg) On any Business Day on which a Swing Line Loan shall remain unpaidIn the event the Commitments are terminated in accordance with Section 2.8 hereof, the Swing Line Lender mayCommitment shall also be terminated automatically. In the event the Borrower reduces the Total Commitment to less than the Swing Line Commitment, in its sole discretion, give notice the Swing Line Commitment shall immediately be reduced to an amount equal to the Lenders having a Revolving Tranche Commitment and Total Commitment. In the event the Borrower that such 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 exceed the Swing Line Commitment as so reduced plus accrued interest thereon.
(h) At no time shall there be more than two outstanding Swing Line Loans.
(i) Each Swing Line Loan shall be funded with a borrowing in an original principal amount of Revolving Tranche Loans $100,000 or multiples of $50,000 in excess thereof.
(provided that such notice j) The Borrower shall be deemed have the right at any time and from time to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h) or (i))time to prepay any Swing Line Loan, in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowingwhole or in part, a "Mandatory Borrowing")without premium or penalty, -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly upon prior written, telecopy or telephonic notice to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) Loan to be prepaid and the amount of to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeaccrued interest thereon.
Appears in 1 contract
Swing Line Loans. (a) Subject Swing Line Lender hereby agrees, subject to the terms ------------------ limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Effective Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and conditions Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $10,000,000; provided that -------- any reduction of the Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire -------- immediately and without further action on April 30, 2000 if the Term Loans are not made on or before that date. Amounts borrowed under this Agreementsubsection 2.1A(v) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender agrees may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Revolving Lenders to make swing line loans (each a "Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loan" and, --------------- collectively, Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loancontrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Credit Exposure would not exceed Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance and such portion of the Swing Line Loans would not exceed the deemed to be so paid shall no longer be outstanding as Swing Line Commitment, Loans and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow shall no longer be due under the Swing Line Commitment, all in accordance with the terms and conditions Note of this Agreement. Each Swing Line Loan Lender but shall mature instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and payable on Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the last day amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Interest Period therefor.
Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by 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 Swing Line Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5. If for any reason (a) Revolving Loans are not made upon the request of Swing Line Lender as provided in the immediately preceding paragraph in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans or (b) The Swing Line Lender shall not be obligated to make any Swing Line the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it deemed to, and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's hereby agrees to, have purchased a 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to the parties thereto. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender's participation as provided in this paragraph, Swing Line Lender shall be funded entitled to recover such amount on demand from such Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a borrowing payment of any amount in which other Revolving Tranche Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Revolving Lender's obligation to make Revolving Loans (provided that such notice for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Revolving Lender's obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be deemed to absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have been automatically given upon against Swing Line Lender, Company or any other Person for any reason whatsoever; (b) the occurrence or continuation of a Default or an Event of Default under Sections 9.1(hor a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (i))d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, in which case a borrowing happening or event whatsoever, whether or not similar to any of Revolving Tranche Loans made as ABR Advances (each the foregoing; provided that such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds obligations of each Mandatory Borrowing shall be remitted directly Revolving Lender are subject to the ------- condition that (X) Swing Line Lender believed in good faith that all conditions ---- under Section 4 to repay such outstanding the making of the applicable Refunded Swing Line LoanLoans or other unpaid Swing Line Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made, or (Y) the satisfaction of any such condition not satisfied had been waived in accordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
(vi) Increases of the Term Loans or Revolving Loan Commitments. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche Loan pursuant to each Mandatory Borrowing in At the amount -------------------------------------------------------------- mutual discretion of Company and in the manner specified in the preceding sentence and on the date specified Lead Arranger, Company may request in writing by at any time during the Swing Line Lender notwithstanding: period from the Effective Date to and including the second anniversary of the Effective Date that (ix) the then effective aggregate principal amount of such Mandatory Borrowing may not comply with the minimum amount for any Type or Types of Term Loans otherwise required hereunderbe increased, and/or (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (ivy) the Borrowing Date then effective aggregate principal amount of such Mandatory Borrowing, Revolving Loan Commitments be increased; provided that (v1) the aggregate principal amount of all the increases in -------- Term Loans then outstandingand/or Revolving Loan Commitments pursuant to this subsection 2.1A(vi) shall not exceed $50,000,000, (vi2) the Aggregate Company may not make more than two requests for such increases in Term Loans and/or Revolving Tranche Exposure at Loan Commitments, (3) no Event of Default or Potential Event of Default shall have occurred and be continuing or occurs as a result of such time increases in Term Loans and/or Revolving Loan Commitments, (4) such increases shall be subject to any prior approvals or exemptions required under any applicable Gaming Laws, and (vii5) Company shall, and shall cause its Restricted Subsidiaries to, execute and deliver such documents and instruments and take such other actions (including, without limitation, obtaining appropriate endorsements to title insurance policies) as may be reasonably requested by Administrative Agent in connection with such increases. Any request under this subsection 2.1A(vi) shall be submitted by Company to Administrative Agent (which shall promptly forward copies to Lenders), specify the proposed effective date and amount of such increase and be accompanied by an Officer's Certificate stating that no Event of Default or Potential Event of Default exists or will occur as a result of such increase. Company may also specify any fees offered to those Lenders (the "Increasing Lenders") which agree to increase the principal amount of their applicable Term Loans or Revolving Loan Commitments, as the case may be, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its applicable Term Loans or Revolving Loan Commitment, as the case may be. No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its applicable Term Loans or Revolving Loan Commitment, as the case may be. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the applicable Term Loans or Revolving Loan Commitments, as the case may be, pursuant to this subsection 2.1A(vi). No Lender which elects not to increase the principal amount of its Term Loan or Revolving Loan Commitment, as the case may be, may be replaced in respect of its existing applicable Term Loans or Revolving Loan Commitment, as the case may be, as a result thereof without such Lender's consent. Each Increasing Lender shall as soon as practicable specify the amount of the Commitments at proposed increase which it is willing to assume. Company may accept some or all of the offered amounts or designate new lenders who qualify as Eligible Assignees and which are reasonably acceptable to Administrative Agent as additional Lenders hereunder in accordance with this subsection 2.1A(iv) (each such time.new lender being a "New Lender"), which New Lender may assume all or a portion of the increase in the aggregate principal amount of the applicable Term Loans or Revolving Loan Commitments, as the case may be. Company and Administrative Agent shall have discretion jointly to adjust the allocation of the increased aggregate principal amount of the applicable Term Loans or Revolving Loan Commitments, as the case may be, among Increasing Lenders and New Lenders. Each New Lender designated by Company and reasonably acceptable to Administrative Agent shall become an additional party hereto as a New Lender concurrently with the effectiveness of the proposed increase in the aggregate principal amount of the applicable Term Loans or Revolving Loan Commitments, as the case may be, upon its execution of an instrument of Joinder, in each case in form and substance satisfactory to Administrative Agent. Subject to the foregoing, any increase requested by Company shall be effective as of the date proposed by Company and shall be in the principal amount equal to (i) the principal amount which Increasing Lenders are willing to assume as increases to the principal amount of their applicable Term Loans or Revolving Loan Commitments, as the case may be, plus (ii) the principal amount offered by ---- New Lenders with respect to the applicable Term Loans or Revolving Loan Commitments, as the case may be, in either case as adjusted by Company and Administrative Agent pursuant to this subsection 2.1A(vi). All new Term Loans to be made under this subsection 2.1A(vi) shall be made to Company on the same day as such increase in the applicable Term Loans under this subsection 2.1A(vi)
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, the Swing Line Lender agrees hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, portion of the "Swing Line Loans") Revolving Loan Commitments available to the Borrower in Dollars Company from time ---------------- to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Commitment Period Loans to Company in an aggregate principal amount at any one time outstanding not to exceed exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5A, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender’s outstanding Revolving Loans and Swing Line Lender’s Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender’s Revolving Loan Commitment, . The original amount of the Swing Line Loan Commitment is $150,000,000; provided that immediately after making each any reduction of the Revolving Loan Commitments made pursuant to subsection 2.4A(ii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of the Swing Line LoanLoan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1A(ii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, (ix) the Swing Line Lender's Credit Exposure would not exceed Loans and the Swing Line Lender's Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not Loan Commitments at any time exceed the Swing Line Commitment, Revolving Loan Commitments then in effect and (iiiy) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) The Swing Line Lender shall not be obligated required to make any Swing Line Loan Loans at any time that there is a time when any Defaulting Lender shall be in default of its obligations under this Agreement hereunder, unless the Swing Line Lender has entered into arrangements reasonably satisfactory to it and the Borrower Company to eliminate the Swing Line Lender's ’s risk with respect to such defaulting Lender's the participation in Swing Line Loans by all such Defaulting Lenders, including by requiring Company to cash collateralize each such Defaulting Lender’s Pro Rata Share of each Swing Line Loan. The With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4A(i), Swing Line Lender will not make may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a Swing Line Loan if the Administrative Agentcopy to Company), or any Lender by notice to the Swing Line Lender and the Borrower no later than 12:00 Noon (New York City time) at least one Business Day prior to the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Revolving Lenders to make Revolving Loans that are Alternate Base Rate Loans on such Funding Date with respect in an amount equal to the amount of such Swing Line LoanLoans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall have determined that the conditions set forth in Section 6 have be immediately delivered by Administrative Agent to Swing Line Lender (and not been satisfied to Company) and such conditions remain unsatisfied as applied to repay a corresponding portion of the requested time of the making such Loan. Each Refunded Swing Line Loan shall be due Loans and payable (ii) on the day being the earliest such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the last day of the Interest Period applicable thereto, the date on which the Refunded Swing Line Commitment Loans shall have been voluntarily terminated be deemed to be paid with the proceeds of a Revolving Loan made by the Borrower in accordance with Section 2.6Swing Line Lender, and the date on which such portion of the Swing Line Loans deemed to be so paid shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a no longer be outstanding as Swing Line Loan Loans and shall remain unpaid, no longer be due under the Swing Line Note of Swing Line Lender may, in its sole discretion, give notice but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company’s accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by 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 Swing Line Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Revolving Lenders having in the manner contemplated by subsection 10.5. If for any reason (a) Revolving Loans are not made upon the request of Swing Line Lender as provided in the immediately preceding paragraph in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Tranche Commitment Lender shall be deemed to, and the Borrower that hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day’s notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Revolving Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender’s participation as provided in this paragraph, Swing Line Lender shall be funded entitled to recover such amount on demand from such Revolving Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Alternate Base Rate. In the event Swing Line Lender receives a borrowing payment of any amount in which other Revolving Tranche Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Revolving Lender’s obligation to make Revolving Loans (provided that such notice for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Revolving Lender’s obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be deemed to absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have been automatically given upon against Swing Line Lender, Company or any other Person for any reason whatsoever; (b) the occurrence or continuation of a Default or an Event of Default under Sections 9.1(hor a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (i))d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, in which case a borrowing happening or event whatsoever, whether or not similar to any of Revolving Tranche Loans made as ABR Advances (each the foregoing; provided that such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds obligations of each Mandatory Borrowing shall be remitted directly Revolving Lender are subject to the condition that (X) Swing Line Lender believed in good faith that all conditions under Section 4 to repay such outstanding the making of the applicable Refunded Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 Loans or other unpaid Swing Line Lender notwithstanding: Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (iY) the amount satisfaction of any such Mandatory Borrowing may condition not comply satisfied had been waived in accordance with subsection 10.6 prior to or at the minimum amount for time such Refunded Swing Line 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 other unpaid Swing Line Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timewere made.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of set forth in this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, Loans until the "Swing Line Loans") to the Maturity Date in such amounts as Borrower in Dollars may from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitmentrequest; provided, provided however, that immediately after making each Swing Line Loan, (i) the aggregate principal amount of all Swing Line Lender's Credit Exposure would Loans shall not exceed the Swing Line Lender's Revolving Tranche Commitment, Sublimit and (ii) the aggregate unpaid balance Outstanding Obligations of the each Lender (including Swing Line Loans would Lender's Swing Line Loans) shall not exceed such Lender's Commitment and the Outstanding Obligations of all Lenders shall not exceed the Swing Line Commitmentcombined Commitments at any time. This is a revolving credit and, subject to the foregoing and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodother terms and conditions hereof, the Borrower may borrow, prepay in whole or in part and reborrow under Swing Line Loans as set forth herein without premium or penalty; provided, however, that Swing Line Lender may terminate or suspend the Swing Line Commitment, all at any time in accordance with the terms and conditions of this Agreementits sole discretion upon Requisite Notice to Borrower. Each Swing Line Loan shall mature be a Base Rate Loan and be due and shall bear interest at the rate of interest (including Applicable Amount, if any) otherwise payable on the last day of the Interest Period thereforBase Rate Loans.
(b) The Unless notified to the contrary by Swing Line Lender, Borrower may irrevocably request a Swing Line Loan on any Business Day in a Minimum Amount therefor by delivering a Request for Extension of Credit therefor by Requisite Notice to Swing Line Lender and Administrative Agent not later than the Requisite Time therefor. Promptly after receipt of such request, Swing Line Lender shall not obtain telephonic verification from Administrative Agent that such Swing Line Loan is permitted hereunder. Upon receiving such verification, Swing Line Lender shall make such Swing Line Loan available to Borrower. Without the consent of Requisite Lenders and Swing Line Lender, no Swing Line Loan shall be obligated made during the continuation of a Default or Event of Default of which Swing Line Lender has received written notice from Administrative Agent specifically referring to make this Section and describing the Default or Event of Default. Upon the making of each Swing Line Loan, each Lender shall be deemed to have purchased from Swing Line Lender a risk participation therein in an amount equal to such Lender's Pro Rata Share times the amount of the Swing Line Loan.
(c) Swing Line Lender shall be responsible for invoicing Borrower for interest on the Swing Line Loans. Unless and until any Swing Line Loan at is converted into a time when any Lender Borrowing of Base Rate Loans or a funding by Lenders of their participation therein, the interest payable on Swing Line Loans is solely for the account of Swing Line Lender.
(d) Borrower shall be in default repay each Swing Line Loan not later than the Requisite Time for payments hereunder upon the earlier of its obligations under this Agreement unless the (i) demand made by Swing Line Lender has entered into arrangements satisfactory (with a copy to it Administrative Agent) and (ii) the Borrower Maturity Date. Payments shall be made directly to eliminate the Swing Line Lender's risk with respect . If the conditions precedent set forth in Section 4.02 can be satisfied, Borrower may request a Borrowing of Committed Loans to repay Swing Line Lender pursuant to Section 2.02 or, failing to make such request, Borrower shall be deemed to have requested a Borrowing of Base Rate Loans (without regard to the Minimum Amount therefor) on such payment date in a principal amount equal to such defaulting payment. Swing Line Lender shall promptly notify Administrative Agent of each Swing Line Loan and each payment thereof.
(e) If Borrower fails to timely make (by payment, a Borrowing or a deemed Borrowing) any payment of principal of or interest on any Swing Line Loan to Swing Line Lender, Swing Line Lender shall notify Administrative Agent of such fact and the unpaid amount. Administrative Agent shall promptly notify each Lender of its Pro Rata Share of such unpaid amount by Requisite Notice, and each Lender shall make its Pro Rata Share of such unpaid amount available to Administrative Agent at Administrative Agent's Office not later than the Requisite Time for payments hereunder on the following 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 such or any other Event of Default or any other event. Each Lender's payment shall be deemed to be a funding of such Lender's participation in such Swing Line Loan. The , 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 will not make a Swing Line Loan if the Administrative Agentagainst Borrower in respect of such payment and shall share, or in accordance with that pro rata participation, in any Lender payment made by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, claim. Any amounts made available by a Lender under its risk participation shall have determined that not relieve or otherwise impair the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as obligation of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the repay Swing Line Lender mayfor any amount of Swing Line Loans, in its sole discretiontogether with interest as provided herein, give notice and such amounts made available shall be payable by Borrower upon demand of Administrative Agent, and shall bear interest at a rate per annum equal to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeRate.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Parent Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line CommitmentCommitment Amount, provided that provided, however, that, immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, Commitment Amount and (iiiii) the Aggregate Revolving Tranche Credit Exposure of all Lenders would not exceed the Aggregate Revolving Tranche CommitmentsCredit Commitment Amount. During the Swing Line Commitment Period, the Parent Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each No Swing Line Loan shall mature and be due and payable made prior to the making of the first Revolving Credit Loans on the last day of the Interest Period thereforfirst Borrowing Date.
(b) 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 ’s risk with respect to such defaulting Lender's ’s participation in such Swing Line LoanLoan shall have been made for the benefit of the Swing Line Lender and such arrangements are in all respects satisfactory to the Swing Line Lender. The Swing Line Lender will not make a any Swing Line Loan if the Administrative Agent, Agent or any Lender Lender, by notice to the Swing Line Lender and the Parent Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Swing Line Loan. Each Swing Line Loan shall be due and payable on the day being the earliest earlier to occur of the last day of the Swing Line Interest Period applicable thereto, the date on which thereto and the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwiseMaturity Date.
(c) On any Business Day on which Upon each receipt by a Swing Line Loan Lender of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, such Lender shall remain unpaidpurchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender may, a participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed including accrued interest thereon) in an amount (the “Swing Line Participation Amount”) equal to have been automatically given upon the occurrence product of a Default or an Event of Default under Sections 9.1(h) or (i)), in which case a borrowing of its Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Credit Commitment Percentage with respect to its Revolving Tranche Commitment on and the Business Day immediately succeeding the giving aggregate outstanding principal amount of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line LoanLoans plus all accrued and unpaid interest thereon. Each Lender having a shall also be liable for an amount equal to the product of its Revolving Tranche Credit Commitment irrevocably agrees to make a Revolving Tranche Loan Percentage and any amounts paid by any Credit Party pursuant to each Mandatory Borrowing in the amount this Section that are subsequently rescinded or avoided, or must be otherwise restored or returned. Such liabilities shall be absolute and in the manner specified in the preceding sentence unconditional and on the date specified in writing by the Swing Line Lender notwithstanding: (i) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.without regard to the
Appears in 1 contract
Swing Line Loans. (a) Subject Swing Line Lender hereby agrees, subject to the terms and conditions limitations set forth below with respect to the maximum amount of this AgreementSwing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Restatement Effective Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5C, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $30,000,000; provided that any reduction of the Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on July 31, 2003 if the Term Loans are not made (and/or continued) on or before that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. The proceeds of each Swing Line Loan shall be made available to Borrower as directed by it (with the proceeds to be used by Borrower as it may determine), it being understood and agreed that Borrower shall be obligated with respect to each Swing Line Loan for the repayment thereof and all amounts owing with respect thereto. Anything contained in this Agreement to the contrary notwithstanding, in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender agrees may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Lenders with a Revolving Loan Commitment to make swing line loans (each a "Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loan" and, --------------- collectively, Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests such Lenders to prepay. Anything contained in this Agreement to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loancontrary notwithstanding, (i) the proceeds of such Revolving Loans made by such Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Credit Exposure would not exceed Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance and such portion of the Swing Line Loans would not exceed the deemed to be so paid shall no longer be outstanding as Swing Line Commitment, Loans and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow shall no longer be due under the Swing Line CommitmentNote, all in accordance with the terms and conditions if any, of this Agreement. Each Swing Line Loan Lender but shall mature instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. Borrower hereby authorizes Administrative Agent and payable on Swing Line Lender to charge Borrower's accounts with Administrative Agent and Swing Line Lender (up to the last day amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Interest Period therefor.
Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by 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 Swing Line Lender should be recovered by or on behalf of Borrower from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5. If for any reason (a) Revolving Loans are not made upon the request of Swing Line Lender as provided in the immediately preceding paragraph in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans or (b) The Swing Line Lender shall not be obligated to make any Swing Line the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender with a Revolving Loan Commitment shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans, together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender with a Revolving Loan Commitment shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each such Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a payment of any amount in default which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, the obligation of each Lender with a Revolving Loan Commitment to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and the obligation of each Lender with a Revolving Loan Commitment to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph 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, Borrower or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Holdings or any of its obligations under Subsidiaries; (d) any breach of this Agreement unless 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 that such obligations of each such Lender are subject to the condition that (X) 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 received a Swing Line Loan if the written notice from Administrative Agent, Agent or any Lender by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have has not been satisfied and such conditions remain unsatisfied as rescinded that there is a Potential Event of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) in existence hereunder prior to the time such Refunded Swing Line Loan or Unpaid Swing Line Loans were made or (i)), Y) the satisfaction of any such condition not satisfied had been waived in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each accordance with subsection 10.6 prior to or at the time such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Refunded Swing Line Lender to repay such outstanding Loans or other unpaid Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timewere made.
Appears in 1 contract
Samples: Credit Agreement (Dominos Inc)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 ’s risk with respect to such defaulting Lender's ’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 Section 6 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaid, 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 may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Credit Agreement (CVS/Caremark Corp)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans (each a "Swing Line SWING LINE Loan" and, --------------- collectively, the "Swing Line LoansSWING LINE LOANS") to the Parent Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line CommitmentCommitment Amount, provided that PROVIDED, HOWEVER, that, immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, Commitment Amount and (iiiii) the Aggregate Revolving Tranche Credit Exposure of all Lenders would not exceed the Aggregate Revolving Tranche CommitmentsCredit Commitment Amount. During the Swing Line Commitment Period, the Parent Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each No Swing Line Loan shall mature and be due and payable made prior to the making of the first Revolving Credit Loans on the last day of the Interest Period thereforfirst Borrowing Date.
(b) 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 LoanLoan shall have been made for the benefit of the Swing Line Lender and such arrangements are in all respects satisfactory to the Swing Line Lender. The Swing Line Lender will not make a any Swing Line Loan if the Administrative Agent, Agent or any Lender Lender, by notice to the Swing Line Lender and the Parent Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Swing Line Loan. Each Swing Line Loan shall be due and payable on the day being the earliest earlier to occur of the last day of the Swing Line Interest Period applicable thereto, the date on which thereto and the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwiseMaturity Date.
(c) On any Business Day on which Upon each receipt by a Swing Line Loan Lender of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, such Lender shall remain unpaidpurchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender may, a participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan Loans (including accrued interest thereon) in an amount (the "SWING LINE PARTICIPATION AMOUNT") equal to the product of its Commitment Percentage and the aggregate outstanding principal amount of the Swing Line Loans plus all accrued and unpaid interest thereon. Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by any Credit Party pursuant to this Section that are subsequently rescinded or avoided, or must be otherwise restored or returned. Such liabilities shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed absolute and unconditional and without regard to have been automatically given upon the occurrence of a any Default or the compliance by and Credit Party 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 of an Event of Default under Sections 9.1(h) or (i))from the Administrative Agent pursuant to Section 10.5, such Lender shall promptly make available its Swing Line Participation Amount to the Administrative Agent for the account of the Swing Line Lender at the applicable Agent Payment Office, in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowingDollars, a "Mandatory Borrowing"), -------------------- and in immediately available funds. The Administrative Agent shall be deliver the payments made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect Lender pursuant to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly preceding sentence to the Swing Line Lender to repay such outstanding Swing Line Loanpromptly upon receipt thereof in like funds as received. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche Loan pursuant to each Mandatory Borrowing in shall indemnify and hold harmless the amount Administrative Agent and in the manner specified in the preceding sentence 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 to pay in accordance with this Section 2.2 (except in respect of losses, liabilities, actions, suits, judgments, demands, costs and expenses 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 be required to pay interest to the Administrative Agent for the account of the Swing Line Lender from the date specified such amount was due until paid in writing full, on the unpaid portion thereof, at a rate of interest per annum equal to the Federal Funds Rate payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender notwithstanding: upon receipt thereof in like funds as received.
(ie) Whenever the amount of such Mandatory Borrowing may not comply with Administrative Agent is reimbursed by any Credit Party, for 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 Revolving Tranche Exposure at such time and (vii) the amount account of the Commitments at Swing Line Lender, for any payment in connection with Swing Line Loans and such timepayment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the each Swing Line Lender agrees (severally, not jointly), in reliance upon the agreements of the other Lenders set forth in this Section 2.4, to make swing line loans (each such loan, a "“Swing Line Loan" and”) to Borrower from time to time on any Business Day prior to the Termination Date, --------------- collectively, notwithstanding the "fact that such Swing Line Loans") to , when aggregated with the Borrower in Dollars from time ---------------- to time during Commitment Percentage of the Outstanding Amount of Revolver Loans and L/C Exposure of such Lender acting as Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to Lender, may exceed the Swing Line amount of such Lender’s Commitment; provided, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the aggregate Outstanding Amount of all Swing Line Lender's Credit Exposure would Loans made by the Swing Line Lenders shall not exceed the Swing Line Lender's Revolving Tranche CommitmentSublimit, (ii) the aggregate unpaid balance of the Swing Line Loans would Commitment Usage shall not exceed the Swing Line Total Commitment, and (iii) the Aggregate Revolving Tranche Exposure aggregate Outstanding Amount of the Revolver Loans of any Lender, plus such Lender’s Commitment Percentage of the Outstanding Amount of all Lenders would L/C Exposure, plus such Lender’s Commitment Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line such Lender’s Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) The Swing Line Lender provided, further, that Borrower shall not be obligated to make 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. 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 the conditions hereof, Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loanmay borrow under this Section 2.4, shall have determined that the conditions set forth in prepay under Section 6 have not been satisfied 3.2, and such conditions remain unsatisfied as of the requested time of the making such Loanreborrow under this Section 2.4. Each Swing Line Loan shall be due and payable on a Daily Floating LIBOR Loan. Immediately upon the day being the earliest making of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan Loan, each Lender shall remain unpaidbe deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Swing Line Lender may, a risk participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing in an amount equal to the product of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's ’s Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) times the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeSwing Line Loan.
Appears in 1 contract
Samples: Credit Agreement (Vail Resorts Inc)
Swing Line Loans. (a) Subject Swing Line Lender hereby agrees, subject to ---------------- the limitations set forth below with respect to the terms maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and conditions Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $10,000,000; provided that any reduction of the -------- Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan -------- Commitment shall expire immediately and without further action on February 16, 1998 if the Tranche A Term Loans are not made on or before that date. Amounts borrowed under this Agreementsubsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the following limitations in the amounts and during the periods indicated:
(a) in no event shall the Total Utilization of Revolving Loan Commit ments at any time exceed the Revolving Loan Commitments then in effect; and
(b) for 30 consecutive days during each consecutive twelve- month period, the sum of (1) the aggregate outstanding principal amount of all Revolving Loans plus (2) the aggregate outstanding ---- principal amount of all Swing Line Loans minus (3) the aggregate ----- outstanding principal amount of all Acquisition Loans, shall not exceed $25,000,000. 44 With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender agrees may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Lenders to make swing line loans (each a "Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loan" and, --------------- collectively, Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loancontrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Credit Exposure would not exceed Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance and such portion of the Swing Line Loans would not exceed the deemed to be so paid shall no longer be outstanding as Swing Line Commitment, Loans and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow shall no longer be due under the Swing Line CommitmentNote, all in accordance with the terms and conditions if any, of this Agreement. Each Swing Line Loan Lender but shall mature instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. Company hereby authorizes Administrative Agent and payable on Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the last day amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Interest Period therefor.
Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by 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 Swing Line Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5. If for any reason (a) Revolving Loans are not made upon the request of Swing Line Lender as provided in the immediately preceding paragraph in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans or (b) The Swing Line Lender shall not be obligated to make any Swing Line the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it deemed to, and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's hereby agrees to, have purchased a 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be funded entitled to recover such amount on demand from such Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a borrowing payment of any amount in which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Tranche Loans (provided that such notice for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be deemed to 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 been automatically given upon against Swing Line Lender, Company or any other Person for any reason whatsoever; (b) the occurrence or continuation of a Default or an Event of Default under Sections 9.1(hor a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Holdings or any of its Subsidiaries; (i))d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, in which case a borrowing happening or event whatsoever, whether or not similar to any of Revolving Tranche Loans made as ABR Advances (each the foregoing; provided that such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds obligations of each Mandatory Borrowing shall be remitted directly -------- Lender are subject to the condition that (X) Swing Line Lender believed in good faith that all conditions under Section 4 to repay such outstanding the making of the applicable Refunded Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 Loans or other unpaid Swing Line Lender notwithstanding: Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (iY) the amount satisfaction of any such Mandatory Borrowing may condition not comply satisfied had been waived in accordance with subsection 10.6 prior to or at the minimum amount for time such Refunded Swing Line 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 other unpaid Swing Line Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timewere made.
Appears in 1 contract
Samples: Credit Agreement (Sealy Corp)
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees to make swing line loans (each such loan, a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 Pro Rata Share of the Outstanding Amount of Revolving Loans, the Tranche B Term Loan and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender's Commitment; provided, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would Total Revolving Outstandings shall not exceed the Swing Line Lender's Aggregate Revolving Tranche CommitmentCommitments, and (ii) the aggregate unpaid balance Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans would shall not exceed the Swing Line such Lender's Commitment, and (iii) provided, further, that the Aggregate Revolving Tranche Exposure Borrower shall not use the proceeds of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the any Swing Line Commitment PeriodLoan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.05, and reborrow under this Section 2.04. Immediately upon the making of a Swing Line CommitmentLoan, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any each Lender shall be in default of its obligations under this Agreement unless deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the 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 in an amount equal to the Swing Line Lender and product of such Lender's Pro Rata Share times the Borrower no later than one Business Day prior to the Borrowing Date with respect to amount of such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Credit Agreement (Team Health Inc)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, 13.26.1. Unless the Swing Line Lender agrees to make swing line loans (each a "and the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Loan" and, --------------- collectively, Lender will promptly request the "Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans". The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Borrower in Dollars from time ---------------- to time during Swing Line Lender. At all times thereafter the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not shall be treated as reduced to exceed the Swing Line Commitmentnil, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender's Revolving Tranche Commitment, Lender will again promptly request the Agent on behalf of the Relevant Borrower (iiand for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the aggregate unpaid balance Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Loans would not exceed Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Commitment, and (iii) Lender on behalf of the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Relevant Borrower to repay Swing Line Commitment PeriodLoans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the Borrower may borrowobligations of each Lender under Subsection 13.26.1 are unconditional, prepay in whole shall not be subject to any qualification or in part exception whatsoever and reborrow under the Swing Line Commitment, all shall be performed in accordance with the terms and conditions of this AgreementAgreement under all circumstances including:
13.26.2.1. Each Swing Line Loan shall mature and be due and payable on the last day any lack of validity or enforceability of the Interest Period therefor.Relevant Borrower's obligations under Section 2.6 or Article Six;
(b) The 13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender shall not be obligated or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Loan at a Lender pursuant to Subsection 13.26.1 (the balance thereof for the time when any Lender shall be being unpaid being referred to in default of its obligations under this Agreement unless Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has entered into arrangements satisfactory to it received payment of that amount (plus interest as provided below) in full (and without in any way limiting the Borrower to eliminate rights of the Swing Line Lender's risk with Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such defaulting overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line LoanLender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender will not make a shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Loan if the Administrative AgentAdvances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by notice the Issuing Bank of any reimbursement or other amount is found to the Swing Line have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect shall promptly return to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and Lender any portion thereof previously transferred to it by such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the Interest Period applicable theretoLender, 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 Swing Line Loans shall become due and payable pursuant without interest to the provisions hereof, whether extent that interest is not payable by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the such Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeconnection therewith.
Appears in 1 contract
Samples: Loan Agreement (Gerdau Usa Inc)
Swing Line Loans. (a) Subject to and upon the terms and conditions of this Agreementherein set forth (including the limitation set forth in Section 2.01), the Swing Line Lender agrees to make swing line loans to Borrower, from time to time prior to the Maturity Date, Swing Line Loans in an aggregate principal amount outstanding at any time not to exceed the Swing Line Subcommitment. Borrower shall be entitled to borrow, repay and reborrow Swing Line Loans in accordance with the provisions, and subject to the limitations, set forth herein (including the limitation set forth in Section 2.01).
(b) Each Swing Line Loan shall bear interest based on the Transaction Rate. The aggregate principal amount of each Swing Line Borrowing shall be not less than $250,000 or a greater integral multiple of $1,000. At no time shall the number of Swing Line Borrowings outstanding under this Section 2.08 exceed three.
(c) Whenever Borrower desires to make a Swing Line Borrowing, it shall give the Swing Line Lender (with a copy to the Agent) prior written notice (or telephonic notice promptly confirmed in writing) of such Swing Line Borrowing (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line LoansBorrowing Notice") prior to the Borrower in Dollars from 12:00 Noon. (local time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) for the Swing Line Lender's Credit Exposure would not exceed ) on the date of such Swing Line Borrowing. 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 requested to be applicable thereto. Prior to 1:30 p.m. (local time for the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodon such date, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) The Swing Line Lender shall not be obligated to make any Swing Line Loan at furnish Borrower (with 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 copy to the Swing Line Lender and Agent) with a quotation of the Borrower no later than one Business Day prior to the Borrowing Date interest rate being offered with respect to such Swing Line LoanBorrowing (whether expressed as a fixed rate of interest in effect for the Interest Period applicable thereto or as a floating rate of interest based on a specified interest rate index and applicable margin for the Interest Period to be applicable thereto; in either case, a "Transaction 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 Agent) of its decision as to whether to accept the Transaction Rate Quote and to confirm the Swing Line Borrowing (which may be done by telephone, promptly confirmed in writing, and which decision shall be irrevocable). If Borrower has so informed the Swing Line Lender and confirmed the terms of the Swing Line Borrowing, then no later than 3:00 p.m. (local time for the Swing Line Lender) on such date, the Swing Line Lender shall make the principal amount of the Swing Line Loan available to the Agent in immediately available funds at the Payment Office of the Agent, and the Agent will make available to Borrower such amount by crediting such amount to Borrower's demand deposit account maintained with the Agent. In the event that the Swing Line Lender does not make such amount available to the Agent at the time prescribed above, but such amount is received later that day, such amount may be credited to Borrower in the manner described in the preceding sentence on the next Business Day (with interest on such amount to begin accruing hereunder on such next Business Day).
(d) Borrower's obligations to pay the principal of, and interest on, the Swing Line Loans shall be evidenced by the records of the Agent and the Swing Line Lender and by the Swing Line Note payable to the Swing Line Lender (or the assignor of such Swing Line Lender) completed in conformity with this Agreement, and such records, absent manifest error, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as constitute prima facie evidence of the requested time of amount owed by Borrower with respect to the making such Loan. Each Swing Line Loans.
(e) The outstanding principal amount under each Swing Line Loan shall be due and payable in full (i) on the day being the earliest of the last day expiration of the Interest Period applicable theretoto such Swing Line Loan, and (ii) on the date Maturity Date.
(f) At any time on which the request of the Swing Line Commitment Lender, each Lender other than the Swing Line Lender shall have been voluntarily terminated by the Borrower purchase a participating interest in accordance with Section 2.6all outstanding Swing Line Loans in an amount equal to its Pro Rata Share of such Swing Line Loans, and the date on which the Swing Line Loans Lender shall become due and payable pursuant to furnish each Lender with a certificate evidencing such participating interest. Such purchase shall be made on the provisions hereof, whether by acceleration or otherwise.
(c) On any third Business Day after such request is made; provided, however, that unless an Event of Default has occurred and is continuing on which the date such request is made, the purchase of a participating interest in any Swing Line Loan shall remain unpaidnot be required to be made until the expiration of the current Interest Period in effect for such Swing Line Loan. On the date of such required purchase, 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 the funds for its participating interest in a Swing Line Loan, the Agent or the Swing Line Lender receives any payment on account thereof, the Agent or the Swing Line Lender 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 if such payment received by the Agent or the Swing Line Lender is required to be returned, such Lender will return to the Lenders having a Revolving Tranche Commitment Agent or the Swing Line Lender any portion thereof previously distributed by the Agent or the Swing Line Lender to it. Each 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 Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans Lender or any other Person may have against the 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(hor the termination of any of the Commitments, (iii) 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 or any other Lender, or (i))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 Tranche Loans made as ABR Advances the Swing Line Subcommitment then in effect, or (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage B) with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly 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 having ) at a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Required Lenders had not agreed to waive such Event of Default for purposes of funding such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeSwing Line Loan.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of set forth in this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, Loans until the "Swing Line Loans") to the Maturity Date in such amounts as Borrower in Dollars may from time ---------------- to time during request; provided, however, that (i) -------- ------- the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the of all Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would Loans shall not exceed the Swing Line Lender's Revolving Tranche CommitmentSublimit at any time, and (ii) the aggregate unpaid balance Outstanding Revolving Obligations of each Lender shall not exceed such Lender's Revolving Commitment and the Outstanding Revolving Obligations of all Lenders shall not exceed the combined Revolving Commitments at any time. Swing Line Lender may terminate or suspend the Swing Line Loans would not exceed at any time in its sole discretion upon Requisite Notice to Borrower. Without the consent of all Requisite Lenders and Swing Line CommitmentLender, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the no Swing Line Commitment Period, Loan shall be made during the continuation of a Default or Event of Default. Borrower may borrow, prepay in whole or in part repay and reborrow under the this Section; provided, however, that Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Lender may terminate or suspend its -------- ------- commitment to make new Swing Line Loan shall mature and be due and payable on the last day of the Interest Period thereforLoans at any time in its sole discretion upon at least 24 hours Requisite Notice to Borrower.
(b) The Unless notified to the contrary by Swing Line Lender, Borrower may request Swing Line Loans in the Minimum Amount therefor upon Requisite Notice made to 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 later than 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 Requisite Time therefor. Each such defaulting Lender's participation in such Swing Line Loan. The Swing Line Lender will not make request for a Swing Line Loan if the Administrative Agent, or any Lender shall constitute a representation and warranty by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied Sections 4.02(a) and (b) are ---------------- --- satisfied. Promptly after receipt of such conditions remain unsatisfied as of request, Swing Line Lender shall obtain telephonic verification from the requested time of the making Administrative Agent that there is availability for such Loan. Each Swing Line Loan under the Revolving Commitments. Upon receiving such verification, Swing Line Lender shall make such Swing Line Loan available to Borrower. Upon the making of a Swing Line Loan, each Lender shall be due and payable on the day being the earliest of the last day of the Interest Period applicable thereto, the date on which the deemed to have purchased from Swing Line Commitment shall have been voluntarily terminated by Lender a risk participation therein in an amount equal to that Lender's Pro Rata Share times the Borrower in accordance with Section 2.6, and the date on which the amount of such ----- Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwiseLoan.
(c) On any Business Day Swing Line Loans shall bear interest at a fluctuating rate per annum equal to the rate of interest payable on which a Base Rate Loans (plus the Applicable Amount, if any) upon demand of Swing Line Lender and on the Maturity Date. Swing Line Lender shall be responsible for invoicing Borrower (or notifying Administrative Agent to so invoice Borrower) for such interest. The interest payable on Swing Line Loans is solely for the account of Swing Line Lender.
(d) Borrower shall repay each Swing Line Loan on the earliest of (i) the fifth Business Day after it is made and (ii) the Maturity Date. Borrower shall remain unpaid, repay the principal amount of each Swing Line Loan by payment directly to Swing Line Lender or by debit at a demand deposit account at the Swing Line Lender maynot later than the Requisite Time for payments hereunder. If the conditions precedent set forth in Section 4.02 can be satisfied, in its sole discretion, give notice Borrower may request a ------------ Borrowing of Loans to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding repay Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that Lender pursuant to Section 2.02, or, ------------ failing to make such notice request, Borrower shall be deemed to have been automatically given upon requested a Borrowing of Base Rate Loans on such payment date pursuant to subsection (e) below.
(e) If Borrower fails to timely make any principal of or interest payment on Swing Line Loans, Swing Line Lender shall notify the Administrative Agent of such fact and the unpaid amount. The Administrative Agent shall promptly notify each Lender of its Pro Rata Share of such amount by Requisite Notice. Each Lender shall make funds in an amount equal its Pro Rata Share of such amount available to the Administrative Agent at the Administrative Agent's Office not later than the Requisite Time for payments hereunder on the following 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 a Default or an Event of Default under Sections 9.1(hor any other occurrence or event. Any such payment shall not relieve or otherwise impair the obligation of Borrower to repay Swing Line Lender for any amount of Swing Line Loans, together with interest as provided herein.
(f) or If the conditions precedent set forth in Section 4.02 can be satisfied ------------ (i))except for the giving of a Request for Extension of Credit) on any date Borrower is obligated to make, but fails to make, a repayment of Swing Line Loans, the funding by the Lenders pursuant to subsection (d) above shall be deemed to be part of a Borrowing of Base Rate Loans (without regard to the Minimum Amount therefor) requested by Borrower. If the conditions precedent set forth in Section 4.02 cannot be satisfied on the date Borrower is obligated to ------------ make, but fails to make, such payment, the funding by the Lenders pursuant to subsection (d) above shall be deemed to be a funding by each Lender of its participation in such Swing Line Loans, and such funds shall be payable by Borrower upon demand and shall bear interest at the Default Rate, and each Lender making such funding shall thereupon acquire a pro rata participation, to the extent of such payment, in which case a borrowing the claim of Revolving Tranche Loans made as ABR Advances (each Swing Line Lender against Borrower in respect of such borrowingpayment and shall share, a "Mandatory Borrowing")in accordance with that pro rata participation, -------------------- shall be in any payment made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage Borrower with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeclaim.
Appears in 1 contract
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees to Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, shall make swing line loans in Dollars (each such loan, a "“Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"”) to the US Borrower in Dollars from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 Applicable Revolving Credit Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided, provided however, that immediately (x) after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Total Revolving Credit Exposure would Outstandings shall not exceed the Swing Line Lender's lesser of (A) the Revolving Tranche CommitmentCredit Aggregate Commitments and (B) the Revolving Credit Availability Amount, and (ii) the aggregate unpaid balance Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Lender’s Revolving Credit Commitment, (y) the US Borrower shall use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (z) the Swing Line Loans would Lender shall not exceed the be under any obligation to make any Swing Line CommitmentLoan 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 (iii) subject to the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodother terms and conditions hereof, the US Borrower may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.05, and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this AgreementSection 2.04. Each Swing Line Loan shall mature and be due and payable bear interest only at a rate based on the last day Base Rate. Immediately upon the making of the Interest Period therefor.
(b) The a Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Loan, each Revolving Credit Lender shall be in default of its obligations under this Agreement unless deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the 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 in an amount equal to the Swing Line Lender and product of such Revolving Credit Lender’s Applicable Revolving Credit Percentage times the Borrower no later than one Business Day prior to the Borrowing Date with respect to amount of such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Credit Agreement
Swing Line Loans. (a) Subject During the Revolving Commitment Period, subject to the terms and conditions of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice make Swing Line Loans to Borrowers in an aggregate amount outstanding at any time up to but not exceeding the Swing Line Sublimit; provided, that after giving effect to the Lenders having a making of any Swing Line Loan and any participation that may result therefrom pursuant to the operation and effect of Section 2.3(b)(iv), in no event shall (i) the Aggregate Revolving Tranche Obligations exceed the Aggregate Revolving Commitments and (ii) the Revolving Credit Exposure of any Lender exceed such Xxxxxx’s Revolving Commitment. Amounts borrowed pursuant to this Section 2.3 may be repaid and re-borrowed during the Revolving Commitment Period. The Swing Line Lender’s Revolving Commitment shall expire on the Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans then outstanding and the Borrower that Revolving Commitments shall have been Paid in Full no later than such outstanding date. Each Swing Line Loan shall be funded with constitute a borrowing of Revolving Tranche Loans (provided Loan for all purposes, except 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- payments thereon shall be made solely to Swing Line Lender for its own account. The obligation of Borrowers to repay Swing Line Loans shall be evidenced by all Lenders having Revolving Tranche Commitments pro rata based on each such the records of Swing Line Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the , provided that, promptly upon Swing Line Lender’s request (but, in any event, within five (5) Business Day immediately succeeding the giving Days after receipt of such notice. The proceeds of each Mandatory Borrowing request), Borrowers shall be remitted directly execute and deliver to Swing Line Lender a Swing Line Note to evidence the Debts arising under the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeLoans.
Appears in 1 contract
Samples: Credit Agreement (BRC Inc.)
Swing Line Loans. (a) Subject Swing Line Lender hereby agrees, subject to the terms limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and conditions Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $5,000,000; provided that any reduction of the Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on May 15, 2001 if the Term Loans are not made on or before that date. Amounts borrowed under this Agreementsubsection 2.1A(ii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the lesser of the Revolving Loan Commitments then in effect and the Borrowing Base then in effect. With respect to any Swing Line Loans that have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender agrees may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 12:00 Noon (New York City time) at least one Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Lenders to make swing line loans (each a "Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loan" and, --------------- collectively, Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given. Borrower hereby authorizes the giving of any such notice and the making of any such Revolving Loans. Anything contained in this Agreement to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loancontrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Credit Exposure would not exceed Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance and such portion of the Swing Line Loans would not exceed the deemed to be so paid shall no longer be outstanding as Swing Line Commitment, Loans and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow shall no longer be due under the Swing Line Commitment, all in accordance with the terms and conditions Note of this Agreement. Each Swing Line Loan Lender but shall mature instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due and payable on under the last day Revolving Note of Swing Line Lender. Borrower agrees to immediately pay Swing Line Lender the amount of the Interest Period therefor.
Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by 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 Swing Line Lender should be recovered by or on behalf of Borrower from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5. If for any reason (a) Revolving Loans are not made upon the request of Swing Line Lender as provided in the immediately preceding paragraph in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans or (b) The Swing Line Lender shall not be obligated to make any Swing Line the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be deemed to, and hereby agrees to, have purchased an assignment of such outstanding Swing Line Loans in default an amount equal to its Pro Rata Share (calculated, in the case of its obligations under this Agreement unless the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender has entered an amount equal to its respective assignment in same day funds at the Administrative Agent's Office. In order to further evidence such assignment (and without prejudice to the effectiveness of the assignment provisions set forth above), each Lender agrees to enter into arrangements satisfactory to it and an Assignment Agreement at the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loan. The request of Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice in form and substance reasonably satisfactory to the Swing Line Lender and such Lender. If any Lender fails to make available to Swing Line Lender the Borrower no later than one amount of such Lender's assignment as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Day prior Days and thereafter at the Base Rate. If Swing Line Lender receives a payment of any amount in which other Lenders have purchased assignments as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the Borrowing Date with respect contrary notwithstanding, each Lender's obligation to such Swing Line Loan, shall have determined that make Revolving Loans for the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as purpose of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 repaying any Refunded Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On second preceding paragraph and each Lender's obligation to purchase an assignment of any Business Day on which a unpaid Swing Line Loan Loans pursuant to the immediately preceding paragraph shall remain unpaidbe absolute and unconditional and shall not be affected by any circumstance, the including (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender mayLender, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans or any other Person for any reason whatsoever; (provided that such notice shall be deemed to have been automatically given upon b) the occurrence or continuation of a Default or an Event of Default under Sections 9.1(hor a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Borrower or any of its Subsidiaries; (i))d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, in which case a borrowing happening or event whatsoever, whether or not similar to any of Revolving Tranche Loans made as ABR Advances (each the foregoing; provided that such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds obligations of each Mandatory Borrowing shall be remitted directly Lender are subject to the condition that (x) Swing Line Lender believed in good faith that all conditions under Section 4 to repay such outstanding the making of the applicable Refunded Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 Loans or other unpaid Swing Line Lender notwithstanding: Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (iy) the amount satisfaction of any such Mandatory Borrowing may condition not comply satisfied had been waived in accordance with subsection 10.6 prior to or at the minimum amount for time such Refunded Swing Line 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 other unpaid Swing Line Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timewere made.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 ’s risk with respect to such defaulting Lender's ’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 Section Sections 5 and 6 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaid, 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 may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Credit Agreement (CVS Corp)
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees agrees, in its sole discretion (it being understood that unless a Default has occurred and is continuing or any Lender is a Defaulting Lender (subject to Section 2.16), the Swing Line Lender anticipates funding Swing Line Loans in accordance with the terms hereof) and in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make swing line loans (each such loan, a "“Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding not to exceed at any time outstanding the amount of the Swing Line Sublimit less the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as the Swing Line Lender, 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 that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would Total Outstandings shall not exceed the Swing Line Lender's Revolving Tranche CommitmentAggregate Commitments, and (ii) the aggregate unpaid 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 would shall not exceed the Swing Line such Lender’s Commitment, and (iii) provided further that the Aggregate Revolving Tranche Exposure Borrower shall not use the proceeds of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the any Swing Line Commitment PeriodLoan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.05, and reborrow under this Section 2.04. Immediately upon the making of a Swing Line CommitmentLoan, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any each Lender shall be in default of its obligations under this Agreement unless deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the 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 in an amount equal to the Swing Line Lender and product of such Lender’s Applicable Percentage times the Borrower no later than one Business Day prior to the Borrowing Date with respect to amount of such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Credit Agreement (Tri-State Generation & Transmission Association, Inc.)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars one or more Borrowers from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.Company
(cb) On any Business Day on which a Swing Line Loan shall be due and payable and shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the applicable Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances to such Borrower (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice of an Event of Default from the Agent pursuant to Section 10.5, 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 a 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 any 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 of an Event of Default from the Agent pursuant to Section 10.5, such Lender shall promptly make available to the Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Agent specified in Section 12.2, in lawful money of the United States and in immediately available funds. The 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 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 Agent any amount such Lender is required by notice from the Agent to pay in accordance with this Section upon receipt of notice of an Event of Default from the Agent pursuant to Section 10.5 (except in respect of losses, liabilities or other obligations suffered by the Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the 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 Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Agent is reimbursed by a Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans made to
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementcontained herein, the Swing Line Lender agrees to that it will make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"Loans to each Borrower from time to time in amounts requested by such Borrower (or Administrative Borrower on behalf of such Borrower) up to the Borrower in Dollars from time ---------------- aggregate amount outstanding equal to time during the Swing Line Commitment Period in an aggregate principal amount at Loan Limit; provided, that, after giving effect to any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each such Swing Line Loan, the aggregate principal amount of the Revolving Loans, Swing Line Loans and Letter of Credit Obligations outstanding shall not exceed the least of (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche CommitmentBorrowing Base, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line CommitmentRevolving Loan Limit, and or (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche CommitmentsMaximum Credit, in each case at such time. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with Subject to the terms and conditions hereof, each Borrower (or Administrative Borrower on behalf of this Agreement. Each Borrowers) may from time to time borrow, prepay and reborrow Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) The Loans. Swing Line Lender shall not be obligated required to make any Swing Line Loans, if, after giving effect thereto, the aggregate outstanding principal amount of all Swing Line Loans would exceed the then existing 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such LoanLimit. Each Swing Line Loan shall be due and payable on the day being the earliest subject to all of the last day of terms and conditions applicable to other Base Rate Loans funded by the Interest Period applicable theretoLenders constituting Revolving Loans, the date on which except that all payments thereon shall be payable to the Swing Line Commitment Lender solely for its own account. All Revolving Loans and Swing Line Loans shall be subject to the settlement among Lenders provided for in Section 6.13 hereof.
(b) Upon the making of a Swing Line Loan, without further action by any party hereto, each Lender shall be deemed to have been voluntarily terminated by irrevocably and unconditionally purchased and received from the Borrower Swing Line Lender, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Pro Rata Share in such Swing Line Loan. To the extent that there is no settlement in accordance with Section 2.6, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid6.13 below, the Swing Line Lender maymay at any time, in its sole discretion, give notice to require the Lenders having a Revolving Tranche Commitment to fund their participations. From and after the Borrower that such outstanding Swing Line Loan shall be date, if any, on which any Lender has funded with a borrowing of Revolving Tranche 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) or (i)), its participation in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 any Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees , Agent shall promptly distribute to make a Revolving Tranche Loan pursuant to each Mandatory Borrowing such Lender, not less than weekly, such Lender’s Pro Rata Share of all payments of principal and interest received by Agent in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the respect of such Swing Line Lender notwithstanding: (i) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeLoan.
Appears in 1 contract
Samples: Loan and Security Agreement (Nci Building Systems Inc)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section Sections 5 and 6 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 Swing Line 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) Swing Line Loans shall be evidenced by a promissory note of the Borrower, substantially in the form of Exhibit B-3 (as indorsed or modified from time to time, the "Swing Line Note"), payable to the order of the Swing Line Lender, dated the first Borrowing Date, and in the maximum stated principal amount equal to the Swing Line Commitment and evidencing the obligation of the Borrower to pay the amount of the Swing Line Commitment or, if less, the aggregate unpaid principal balance of the Swing Line Loans made by the Swing Line Lender which shall not have been funded by a Mandatory Borrowing, together with interest thereon as provided herein.
(c) On any Business Day on which a Swing Line Loan shall be due and payable and shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 may not comply 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 Revolving Tranche Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(d) Upon each receipt by a Lender of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, 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.
(e) In furtherance of Section 2.2(d), upon each receipt by a Lender of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, 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 upon receipt of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5 (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.
(f) 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 (CVS Corp)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans in Dollars under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's ’s risk with respect to such defaulting Defaulting Lender's ’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 Section 6 have not been satisfied or waived 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaidbear 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 having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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 Section 9.1(h), (i) or (ij)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "“Mandatory Borrowing"), -------------------- ”) shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's ’s Commitment Percentage with respect to its Revolving Tranche Commitment 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 may not comply 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 Revolving Tranche 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 2.2 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 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 Dollars 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 2.2 (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 (but not less than 0.0%), and (ii) thereafter, the Federal Funds Effective Rate (but not less than 0.0%) 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 2.2, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (CVS HEALTH Corp)
Swing Line Loans. (a) Subject to the terms and conditions hereof and in reliance upon the agreements of the other Lenders set forth in this AgreementSection 2.2, the Swing Line Lender agrees to make swing line loans in Dollars under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's ’s risk with respect to such defaulting Defaulting Lender's ’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, Agent or any Lender 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 Section 6 have not been satisfied or waived 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 Interest Period applicable theretotenth Domestic Business Day after such Swing Line Loan is made, 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaidbear interest at the Negotiated Rate (or, if the Negotiated Rate is not available, the LIBOR Daily Floating Rate plus the Applicable Margin). 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 having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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 Section 9.1(h), (i) or (ij)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "“Mandatory Borrowing"), -------------------- ”) shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's ’s Commitment Percentage with respect to its Revolving Tranche Commitment 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 may not comply 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 CHAR1\1787260v5 then outstanding, (vi) the Aggregate Revolving Tranche Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of a 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 2.2 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 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 a notice from the Administrative Agent, such Lender shall promptly (and, in any event, no later than the Domestic Business Day immediately succeeding the giving of such notice) 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 Dollars 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 2.2 (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 2.2, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (CVS HEALTH Corp)
Swing Line Loans. (a) Subject In addition to the terms and conditions other options available to ---------------- Borrower hereunder, up to $5,000,000 of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Commitment shall be available for Swing Line Loans would not exceed subject to the following terms and conditions. Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all Loans shall be made available for same day borrowings provided that notice is given in accordance with the terms and conditions of this AgreementSection 2.10 hereof. Each All Swing Line Loan Loans shall mature and be due and payable on bear interest at ------------ the last day of the Interest Period therefor.
(b) The Swing Line Lender Adjusted ABR Rate. In no event 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 be required 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 fund a Swing Line Loan if it would increase the total aggregate outstanding Loans by Swing Line Lender hereunder plus its Percentage of Facility Later of Credit Obligations to an amount in excess of its Commitment. Upon request of the Swing Line Lender, each Lender irrevocably agrees to purchase its Percentage of any Swing Line Loan made by the Swing Line Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of a Default hereunder, provided that no Lender shall be -------- required to have the sum of its total outstanding Loans plus its Percentage of Facility Letters of Credit be greater than its Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Loan made by the purchasing Lender and not by the selling Lender for all purposes under this Agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative AgentAgent for the benefit of the Swing Line Lender and all such amounts accruing on or attributable to such Loans for the period from and after the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the purchasing Lender. If prior to purchasing its Percentage in a Swing Line Loan one of the events described in Section 8.7 or 8.8 shall have occurred and such event prevents the consummation ----------- --- of the purchase contemplated by preceding provisions, or each Lender will purchase an undivided participating interest in the outstanding Swing Line Loan in an amount equal to its Percentage of such Swing Line Loan From and after the date of each Lender's purchase of its participating interest in a Swing Line Loan, if the Swing Line Lender receives any payment on account thereof the Swing Line Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, 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 was received by notice -------- ------- the Swing Line Lender and is required to be returned to the Borrower, each Lender will return to the Swing Line Lender and any portion thereof previously distributed by the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such LoanLender to it. Each No Swing Line Loan shall be due outstanding for more than five (5) days at a time and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwisenot be outstanding for more than a total often (10) days during any month.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Revolving Credit Agreement (National Golf Properties Inc)
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset 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 swing line loans (each such loan, a "“Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 Applicable Revolving Credit Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Total Revolving Credit Exposure would Outstandings shall not exceed the Swing Line Lender's Revolving Tranche CommitmentCredit Facility at such time, and (ii) the aggregate unpaid balance Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender at such time, plus such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans would at such time shall not exceed the Swing Line such Lender’s Revolving Credit Commitment, and (iii) provided further that the Aggregate Revolving Tranche Exposure Borrower shall not use the proceeds of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the any Swing Line Commitment PeriodLoan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.05, and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this AgreementSection 2.04. Each Swing Line Loan shall mature and be due and payable bear interest only at a rate based on the last day Base Rate. Immediately upon the making of the Interest Period therefor.
(b) The a Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Loan, each Revolving Credit Lender shall be in default of its obligations under this Agreement unless deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the 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 in an amount equal to the product of such Revolving Credit Lender’s Applicable Revolving Credit Percentage times the amount of such Swing Line Loan. The Notwithstanding the foregoing, the Swing Line Lender will may (in its sole discretion) determine not make a to provide any Swing Line Loan Loans to the Borrower. Furthermore, before making any Swing Line Loans (if the Administrative Agent, or at such time any Lender by notice is a Deteriorating Lender), the Swing Line Lender may condition the provision of such Swing Line Loans on its receipt of Cash Collateral or similar security satisfactory to the Swing Line Lender and (in its sole discretion) from either the Borrower no later than one Business Day prior or such Deteriorating Lender (without any obligation of such Deteriorating Lender to provide such Cash Collateral or similar security) in respect of such Deteriorating Lender’s risk participation in such Swing Line Loans as set forth below. The Borrower and/or such Deteriorating Lender hereby grants to the Borrowing Date with respect Administrative Agent, for the benefit of the Swing Line Lender, a security interest in all such Cash Collateral and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked deposit accounts at Xxxxx Fargo and may be invested in Cash Equivalents reasonably acceptable to the Administrative Agent. If at any time the Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Administrative Agent for the benefit of the Swing Line Lender or that the total amount of such funds is less than the aggregate risk participation of such Deteriorating Lender in the relevant Swing Line Loan, shall have determined the Borrower and/or such Deteriorating Lender will, promptly upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate risk participation over (y) the total amount of funds, if any, then held as Cash Collateral that the conditions set forth in Section 6 have not been satisfied Administrative Agent determines to be free and clear of any such conditions remain unsatisfied right and claim. If the Lender that triggers the Cash Collateral requirement under this paragraph ceases to be a Deteriorating Lender (as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 determined by the Swing Line Lender notwithstanding: (i) in good faith), or if the amount of such Mandatory Borrowing may not comply with Swing Line Sublimit has been permanently reduced to zero, the minimum amount funds held as Cash Collateral shall thereafter be returned to the Borrower or the Deteriorating Lender, whichever provided the funds 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeCash Collateral.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, the Swing Line Lender agrees hereby agrees, subject to ---------------- the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, portion of the "Swing Line Loans") Revolving Loan Commitments available to the Borrower in Dollars Company from time ---------------- to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Commitment Period Loans to Company in an aggregate principal amount at any one time outstanding not to exceed exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Revolving Loan Commitment, . The original amount of the Swing Line Loan Commitment is $3,000,000; provided that immediately after making each any reduction of the Revolving -------- Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of the Swing Line LoanLoan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, any Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall -------- expire immediately and without further action on November 14, 1997 if the Closing Date shall not have occurred on or before that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (Charlotte, NC time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding 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 Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Credit Exposure would not exceed Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance and such portion of the Swing Line Loans would not exceed the deemed to be so paid shall no longer be outstanding as Swing Line Commitment, Loans and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow shall no longer be due under the Swing Line CommitmentNote, of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note, of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by 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 Swing Line Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in accordance with the terms and conditions manner contemplated by subsection 10.5. Immediately upon the funding of this Agreement. Each each Swing Line Loan by Swing Line Lender, each Lender shall mature be deemed to, and be due hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated without giving effect to clauses (d) and payable on the last day (e) of the Interest Period therefor.
(bdefinition of Revolving Loan Exposure) The of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to evidence such participation, each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to all parties. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall not be obligated entitled to make any Swing Line Loan recover such amount on demand from such Lender together with interest thereon at a time when any Lender shall be in default of its obligations under this Agreement unless the rate customarily used by Swing Line Lender has entered into arrangements satisfactory for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a payment of any amount in which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to it each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the Borrower to eliminate the immediately preceding paragraph 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'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, Company or any Lender by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
other Person for any reason whatsoever; (cb) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence or continuation of a Default or an Event of Default under Sections 9.1(hor a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (i))d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, in which case a borrowing happening or event whatsoever, whether or not similar to any of Revolving Tranche Loans made as ABR Advances (each the foregoing; provided that such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds obligations of each Mandatory Borrowing shall be remitted directly -------- Lender are subject to the condition that (X) Swing Line Lender believed in good faith that all conditions under Section 4 to repay such outstanding the making of the applicable Refunded Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 Loans or other unpaid Swing Line Lender notwithstanding: Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (iY) the amount satisfaction of any such Mandatory Borrowing may condition not comply satisfied had been waived in accordance 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timesubsection 10.6.
Appears in 1 contract
Samples: Credit Agreement (Sandhills Inc)
Swing Line Loans. (a) Subject to During the terms and conditions of this AgreementRevolving Commitment Period, the Swing Line Lender agrees to shall make swing line revolving credit loans (each a "Swing Line Loan" and, --------------- collectively, the "“Swing Line Loans"”) in Dollars to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at on any one time outstanding not to exceed the Swing Line Commitment, Business Day; provided that immediately after making each Swing Line Loan, (i) the aggregate principal amount of Swing Line Loans shall not exceed an amount equal to $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's Credit Exposure would , may exceed the amount of such Revolving Lender’s Revolving Commitment,made by such Swing Line Lender following the First Amendment Effective Date shall not exceed the Swing Line Lender's Revolving Tranche Commitment$0, (ii) with respect to the Revolving Lenders collectively, the aggregate unpaid balance principal amount of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would Obligations shall not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment PeriodCommitted Amount, (iii) the Borrower may borrow, prepay in whole or in part and reborrow under shall not use the Swing Line Commitment, all in accordance with the terms and conditions proceeds of this Agreement. Each any Swing Line Loan shall mature to refinance any outstanding Swing Line Loan and be due and payable on (iv) the last day of the Interest Period therefor.
(b) The Swing Line Lender shall not 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 Borrowing may have, Fronting Exposure. Swing Line Loans shall be Daily Floating Eurodollar Rate Loans, and may be repaid and reborrowed in accordance with the provisions hereof. Immediately upon the making of a time when any Swing Line Loan, each Revolving Lender shall be in default of its obligations under this Agreement unless deemed to, and hereby irrevocably and unconditionally agrees to, purchase from 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 a participation interest 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 in an amount equal to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to product of such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such LoanRevolving Lender’s Revolving Commitment Percentage thereof. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a No Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans for longer than five (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(h5) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeDays.
Appears in 1 contract
Samples: Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Swing Line Loans. (a) Subject Swing Line Lender hereby agrees, subject to the terms limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender’s outstanding Revolving Loans and conditions Swing Line Lender’s Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender’s Revolving Loan Commitment. As of the Restatement Effective Date, the amount of the Swing Line Loan Commitment is $50,000,000; provided that any reduction of the Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding proportionate reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. Amounts borrowed under this Agreementsubsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to such Revolving Lender’s Pro Rata Share of such Swing Line Loan; provided, however that the amount of such Lender’s risk participation shall be adjusted in the manner set forth in Section 2.9D. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect and prior to the termination of the Revolving Loan Commitments, the Revolving Loan Exposure of a Lender agrees shall not exceed its Revolving Loan Commitment. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Revolving Lenders to make swing line loans (each a "Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loan" and, --------------- collectively, Loans (the "“Refunded Swing Line Loans"”) outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loancontrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Credit Exposure would not exceed ’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 Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance and such portion of the Swing Line Loans would not exceed the deemed to be so paid shall no longer be outstanding as Swing Line Commitment, Loans and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow shall no longer be due under the Swing Line Commitment, all in accordance with the terms and conditions Note of this Agreement. Each Swing Line Loan Lender but shall mature instead constitute part of Swing Line Lender’s outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Borrower hereby authorizes Administrative Agent and payable on Swing Line Lender to charge Borrower’s accounts with Administrative Agent and Swing Line Lender (up to the last day amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Interest Period therefor.
Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by 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 Swing Line Lender should be recovered by or on behalf of Borrower from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5. If for any reason (a) Revolving Loans are not made upon the request of Swing Line Lender as provided in the immediately preceding paragraph in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans or (b) The Swing Line Lender shall not be obligated to make any Swing Line the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, the request submitted by Swing Line Lender pursuant to the immediately preceding paragraph shall be deemed to be a request by Swing Line Lender that each of the Revolving Lenders fund the amount of its Swing Line Risk Participation in the relevant Swing Line Loan and each Revolving Loan made pursuant to the immediately preceding paragraph shall be deemed payment in respect of such Swing Line Risk Participation. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender’s Swing Line Risk Participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Revolving Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a payment of any amount in default which other Revolving Lenders have funded Swing Line Risk Participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Revolving Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Revolving Lender’s obligation to fund its Swing Line Risk Participation pursuant to the immediately preceding paragraph 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 Revolving Lender may have against Swing Line Lender, Borrower or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Borrower or any of its obligations under Subsidiaries; (d) any breach of this Agreement unless 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 that such obligations of each Revolving Lender are subject to the condition that (x) Swing Line Lender believed in good faith that all conditions under Section 4 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made, or (y) the satisfaction of any such condition not satisfied had been waived in accordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made. Subject to Section 2.9E, at any time a Lender is a Defaulting Lender, within three (3) Business Days after the request of the Administrative Agent or Swing Line Lender, such Defaulting Lender shall provide cash collateral or other security satisfactory to the Swing Line Lender has entered into arrangements (in its sole discretion) in respect of such Defaulting Lender’s obligation to fund its Swing Line Risk Participation (as adjusted pursuant to Section 2.9D); provided, that if such Defaulting Lender fails to provide such cash collateral or other security, the Borrower shall provide, within five (5) Business Days, cash collateral or other security satisfactory to it and the Borrower to eliminate the Swing Line Lender (in its sole discretion) in respect of such Defaulting Lender's risk with respect ’s obligation to such defaulting Lender's participation in such fund its Swing Line LoanRisk Participation (as adjusted pursuant to Section 2.9D). The Swing Line Such Defaulting Lender will not make a Swing Line Loan if and Borrower each hereby grants to the Administrative Agent, or any Lender by notice to for the benefit of the Swing Line Lender and the Borrower no later other Lenders (other than one Business Day prior such Defaulting Lender), a Lien on of such Person’s cash collateral or other security (and all proceeds of the foregoing) to secure the Obligations. Cash collateral shall be maintained in blocked, Deposit Accounts with the Administrative Agent and shall be invested in Cash Equivalents reasonably acceptable to the Borrowing Date with respect Administrative Agent or held as Cash. If at any time the Administrative Agent determines that any funds held as cash collateral are subject to such Swing Line Loan, shall have determined that any right or claim of any Person other than the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the Interest Period applicable thereto, the date on which Administrative Agent or the Swing Line Commitment shall have been voluntarily terminated Lender or that the total amount of such funds is less than such Defaulting Lender’s funding obligations in respect of its Swing Line Risk Participation, such Defaulting Lender or Borrower shall, within three (3) Business Days after demand by the Borrower Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as cash collateral, an amount equal to the excess of (x) such aggregate funding obligations over (y) the total amount of funds, if any, then held as cash collateral that the Administrative Agent determines to be free and clear of any such right and claim. At the discretion of the Swing Line Lender, such funds shall be applied, to the extent permitted under applicable Governmental Authorizations, to reimburse the Swing Line Lender. The Lien held by the Administrative Agent in accordance with Section 2.6, and such cash collateral shall be released upon the date on which satisfaction of each of the following conditions: (a) no Swing Line Loans shall become due be outstanding, (b) all Swing Line Loan obligations shall have been repaid in full and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an no Event of Default under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall have occurred and be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timecontinuing.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof and in reliance upon the agreements of the other Lenders set forth in this AgreementSection 2.2, the Swing Line Lender agrees to make swing line loans in Dollars under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's ’s risk with respect to such defaulting Defaulting Lender's ’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, Agent or any Lender 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 Section 6 have not been satisfied or waived 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 Interest Period applicable theretotenth Domestic Business Day after such Swing Line Loan is made, 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaidbear interest at the Negotiated Rate (or, if the Negotiated Rate is not available, the LIBOR Daily Floating Rate plus the Applicable Margin). 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 having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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 Section 9.1(h), (i) or (ij)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "“Mandatory Borrowing"), -------------------- ”) shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's ’s Commitment Percentage with respect to its Revolving Tranche Commitment 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 may not comply 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 Revolving Tranche Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of a 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 2.2 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 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 a 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 Dollars 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 2.2 (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 2.2, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (CVS HEALTH Corp)
Swing Line Loans. (a) Subject In addition to the other options available to Borrower hereunder, up to $15,000,000 of the Swing Line Lender's commitment, shall be available for Swing Line Loans subject to the following terms and conditions. Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.11 hereof. All Swing Line Loans shall bear interest at the CBR Rate. In no event shall the Swing Line Lender be required to fund a Swing Line Loan if it would increase the total aggregate outstanding Loans by Swing Line Lender hereunder to an amount in excess of its Commitment. Upon request of the Swing Line Lender, each Lender irrevocably agrees to purchase its Percentage of any Swing Line Loan made by the Swing Line Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of an Default hereunder (provided Swing Line Lender had no knowledge of an Default at the time the Swing Line Loan was funded) provided no Lender shall be required to have total outstanding Loans in an amount greater than its Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Loan made by the purchasing Lender and not by the selling Lender for all purposes under this Agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the Swing Line Lender and all such amounts accruing on or attributable to such Loans for the period from and after the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the purchasing Lender. If prior to purchasing its Percentage in a Swing Line Loan one of the events described in Section 9.6 or 9.7 shall have occurred and such event prevents the consummation of the purchase contemplated by preceding provisions, each Lender will purchase an undivided participating interest in the outstanding Swing Line Loan in an amount equal to its Percentage of such Swing Line Loan. From and after the date of each Lender's purchase of its participating interest in a Swing Line Loan, if the Swing Line Lender receives any payment on account thereof, the Swing Line Lender agrees will distribute to make swing line loans such Lender its participating interest in such amount (each a "Swing Line Loan" andappropriately adjusted, --------------- collectivelyin the case of interest payments, to reflect the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to period of time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line which such Lender's Credit Exposure would not exceed participating interest was outstanding and funded); provided, however, that in the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 event that such payment was received by the Swing Line Lender has entered into arrangements satisfactory and is required to it and be returned to 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 Borrower, each Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice return to the Swing Line Lender and any portion thereof previously distributed by the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such LoanLender to it. Each No Swing Line Loan shall be due outstanding for more than five (5) days at a time and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwisenot be outstanding for more than a total of ten (10) days during any month.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Unsecured Revolving Credit Agreement (Susa Partnership Lp)
Swing Line Loans. (ai) Subject As it is understood that the purpose for the Swing Line Loan is to the terms and conditions of this Agreementfund AGCO’s operating account, the Swing Line Lender agrees Loans and repayments to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount Bank may be made on a sweep basis, requiring no formal notification from AGCO. The Swing Line Bank may at its discretion, upon three (3) Business Days’ written notice to AGCO, choose to require written notification of Swing Line Loans from AGCO, but is not required to do so. At any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Bank makes a Swing Line Loan, each Lender (i) other than the Swing Line Lender's Credit Exposure would not exceed Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Loan in an amount equal to such Lender's ’s Pro Rata Share (calculated in accordance with Section 2.11(e)(iv) if any Lender is a Defaulting Lender) of such Swing Line Loan and shall be obligated to fund such participation as a Revolving Tranche CommitmentLoan at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such participating interests shall be absolute, irrevocable and unconditional and shall not be affected by any circumstance, including, without limitation, (ii1) the aggregate unpaid balance of any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Loans would Bank or any other Person for any reason whatsoever; (2) the occurrence or continuance of a Default or an Event of Default or the termination of the Revolving Loan Commitments; (3) any adverse change in the condition (financial or otherwise) of AGCO or any other Person; (4) any breach of this Agreement by any Borrower or any other Lender; or (5) any other circumstance, happening or event whatsoever, whether or not exceed similar to any of the foregoing. Each Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund its Pro Rata Share (calculated in accordance with Section 2.11(e)(iv) if any Lender is a Defaulting Lender) of an outstanding Swing Line Loan on (x) the Business Day on which demand therefor is made by the Swing Line CommitmentBank, and provided that such demand is made not later than 11:00 a.m. (iiiNew York City time) on such Business Day, or (y) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitmentsfirst Business Day next succeeding such demand if such demand is made after such time. During Upon any such assignment by the Swing Line Commitment PeriodBank to any other Lender of a participation in a Swing Line Loan, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms Bank represents and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 warrants to such defaulting Lender's participation in other Lender that it is the legal and beneficial owner of such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agentinterest being assigned by it, but makes no other representation or any Lender by notice to the Swing Line Lender warranty and the Borrower assumes no later than one Business Day prior to the Borrowing Date responsibility with respect to such Swing Line Loan, the Loan Documents or the Borrowers. If and to the extent that any Lender shall not have determined that so made the conditions set forth amount of such participation in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable available to the Administrative Agent, such Lender agrees to pay to the Administrative Agent forthwith on the demand such amount together with interest thereon, for each day being the earliest of the last day of the Interest Period applicable thereto, from the date on which of request by the Swing Line Commitment Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate. If such Lender shall have been voluntarily terminated pay to the Administrative Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a U.S. Dollar Revolving Loan made by the Borrower in accordance with Section 2.6such Lender on such Business Day for purposes of this Agreement, and the date on which outstanding principal amount of the Swing Line Loans Loan made by the Swing Line Bank shall become due and payable pursuant to the provisions hereof, whether be reduced by acceleration or otherwisesuch amount on such Business Day.
(cii) On any Business Day on which a Unless the Swing Line Loan shall remain unpaidBank is the Administrative Agent, the Swing Line Lender may, in its sole discretion, give notice Bank shall provide to the Lenders having Administrative Agent, on Friday of each week and on each date the Administrative Agent notifies the Swing Line Bank that any Borrower has made a Revolving Tranche Commitment and borrowing request or the Borrower that such Administrative Agent otherwise requests the same, an accounting for the outstanding Swing Line Loans in form reasonably satisfactory to the Administrative Agent. At any time that the Unused Revolving Loan shall be funded with a borrowing of Revolving Tranche 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) or (i))Commitment is less than U.S. $25,000,000, in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender Sublimit shall be reduced temporarily to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, lesser amount; and
(iii) whether Unless a Default or an Event of Default then exists, the Swing Line Bank shall give AGCO and the Administrative Agent at least seven (iv7) days’ prior written notice before exercising its discretion herein not to make Swing Line Loans. AGCO must give ten (10) days’ prior written notice to the Borrowing Date Administrative Agent and the then existing Swing Line Bank of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount any change in designation of the Commitments at Swing Line Bank. The replaced Swing Line Bank shall continue to be a “Swing Line Bank” for purposes of repayment of any Swing Line Loans made prior to such timereplacement and outstanding after such replacement.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
Swing Line Loans. (a) Subject Swing Line Lender hereby agrees, subject to the terms limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender’s outstanding Revolving Loans and conditions Swing Line Lender’s Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender’s Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $50,000,000; provided that any reduction of the Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on July 26, 2007 if the initial Term Loans are not made on or before that date. Amounts borrowed under this Agreementsubsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender agrees may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting 41 Revolving Lenders to make swing line loans (each a "Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loan" and, --------------- collectively, Loans (the "“Refunded Swing Line Loans"”) outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loancontrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Credit Exposure would not exceed ’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 Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance and such portion of the Swing Line Loans would not exceed the deemed to be so paid shall no longer be outstanding as Swing Line Commitment, Loans and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow shall no longer be due under the Swing Line Commitment, all in accordance with the terms and conditions Note of this Agreement. Each Swing Line Loan Lender but shall mature instead constitute part of Swing Line Lender’s outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Borrower hereby authorizes Administrative Agent and payable on Swing Line Lender to charge Borrower’s accounts with Administrative Agent and Swing Line Lender (up to the last day amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Interest Period therefor.
Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by 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 Swing Line Lender should be recovered by or on behalf of Borrower from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5. If for any reason (a) Revolving Loans are not made upon the request of Swing Line Lender as provided in the immediately preceding paragraph in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans or (b) The Swing Line Lender shall not be obligated to make any Swing Line the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it deemed to, and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's hereby agrees to, have purchased a 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day’s notice from Swing Line Lender, each Revolving Lender shall deliver to Swing’ Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation. provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to the parties thereto. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender’s participation as provided in this paragraph, Swing Line Lender shall be funded entitled to recover such amount on demand from such Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a borrowing payment of any amount in which other Revolving Tranche Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Revolving Lender’s obligation to make Revolving Loans (provided that such notice for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Revolving Lender’s obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be deemed to absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have been automatically given upon against Swing Line Lender, Borrower or any other Person for any reason whatsoever; (b) the occurrence or continuation of a Default or an Event of Default under Sections 9.1(hor a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Borrower or any of its Subsidiaries; (i))d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, in which case a borrowing happening or event whatsoever, whether or not similar to any of Revolving Tranche Loans made as ABR Advances (each the foregoing; provided that such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds obligations of each Mandatory Borrowing shall be remitted directly Revolving Lender are subject to the condition that (x) Swing Line Lender believed in good faith that all conditions under Section 4 to repay such outstanding the making of the applicable Refunded Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 Loans or other unpaid Swing Line Lender notwithstanding: Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made, or (iy) the amount satisfaction of any such Mandatory Borrowing may condition not comply satisfied had been waived in accordance with subsection 10.6 prior to or at the minimum amount for time such Refunded Swing Line 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 other unpaid Swing Line Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timewere made.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of set forth in this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, Loans until the "Swing Line Loans") to the Borrower Maturity Date in Dollars such amounts as Company may from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitmentrequest; provided, provided however, that immediately after making each Swing Line Loan, (i) the aggregate principal amount of all Swing Line Lender's Credit Exposure would Loans shall not exceed the Swing Line Lender's Revolving Tranche Commitment, Sublimit and (ii) the aggregate unpaid balance Outstanding Obligations of the each Lender (including Swing Line Loans would Lender's Swing Line Loans) shall not exceed such Lender's Commitment and the Outstanding Obligations of all Lenders shall not exceed the Swing Line Commitmentcombined Commitments at any time. This is a revolving credit and, subject to the foregoing and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodother terms and conditions hereof, the Borrower Company may borrow, prepay in whole or in part and reborrow under Swing Line Loans as set forth herein without premium or penalty; provided, however, that Swing Line Lender may terminate or suspend the Swing Line Commitment, all at any time in accordance with the terms and conditions of this Agreementits sole discretion upon Requisite Notice to Company. Each Swing Line Loan shall mature be a Base Rate Loan and be due and shall bear interest at the rate of interest (including Applicable Amount, if any) otherwise payable on the last day of the Interest Period thereforBase Rate Loans.
(b) The Unless notified to the contrary by Swing Line Lender, Company may irrevocably request a Swing Line Loan on any Business Day in a Minimum Amount therefor by delivering a Request for Extension of Credit therefor by Requisite Notice to Swing Line Lender and Administrative Agent not later than the Requisite Time therefor. Promptly after receipt of such request, Swing Line Lender shall not obtain telephonic verification from Administrative Agent that such Swing Line Loan is permitted hereunder. Upon receiving such verification, Swing Line Lender shall make such Swing Line Loan available to Borrower. Without the consent of Requisite Lenders and Swing Line Lender, no Swing Line Loan shall be obligated made during the continuation of a Default or Event of Default of which Swing Line Lender has received written notice from Administrative Agent specifically referring to make this Section and describing the Default or Event of Default. Upon the making of each Swing Line Loan, each Lender shall be deemed to have purchased from Swing Line Lender a risk participation therein in an amount equal to such Lender's Pro Rata Share times the amount of the Swing Line Loan.
(c) Swing Line Lender shall be responsible for invoicing Company for interest on the Swing Line Loans. Unless and until any Swing Line Loan at is converted into a time when any Lender Borrowing of Base Rate Loans or a funding by Lenders of their participation therein, the interest payable on Swing Line Loans is solely for the account of Swing Line Lender.
(d) Company shall be in default repay each Swing Line Loan not later than the Requisite Time for payments hereunder upon the earlier of its obligations under this Agreement unless the (i) demand made by Swing Line Lender has entered into arrangements satisfactory (with a copy to it Administrative Agent) and (ii) the Borrower Maturity Date. Payments shall be made directly to eliminate the Swing Line Lender's risk with respect . If the conditions precedent set forth in Section 4.02 can be satisfied, Borrower may request a Borrowing of Committed Loans to repay Swing Line Lender pursuant to Section 2.02 or, failing to make such request, Borrower shall be deemed to have requested a Borrowing of Base Rate Loans (without regard to the Minimum Amount therefor) on such payment date in a principal amount equal to such defaulting payment. Swing Line Lender shall promptly notify Administrative Agent of each Swing Line Loan and each payment thereof.
(e) If Company fails to timely make (by payment, a Borrowing or a deemed Borrowing) any payment of principal of or interest on any Swing Line Loan to Swing Line Lender, Swing Line Lender shall notify Administrative Agent of such fact and the unpaid amount. Administrative Agent shall promptly notify each Lender of its Pro Rata Share of such unpaid amount by Requisite Notice, and each Lender shall make its Pro Rata Share of such unpaid amount available to Administrative Agent at Administrative Agent's Office not later than the Requisite Time for payments hereunder on the following 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 such or any other Event of Default or any other event. Each Lender's payment shall be deemed to be a funding of such Lender's participation in such Swing Line Loan. The , 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 will not make a Swing Line Loan if the Administrative Agentagainst Company in respect of such payment and shall share, or in accordance with that pro rata participation, in any Lender payment made by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date Company with respect to such Swing Line Loan, claim. Any amounts made available by a Lender under its risk participation shall have determined that not relieve or otherwise impair the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as obligation of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant Company to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the repay Swing Line Lender mayfor any amount of Swing Line Loans, in its sole discretiontogether with interest as provided herein, give notice and such amounts made available shall be payable by Company upon demand of Administrative Agent, and shall bear interest at a rate per annum equal to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeRate.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 ’s risk with respect to such defaulting Lender's ’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 Section 6 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaidbear 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 having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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 (ij)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "“Mandatory Borrowing"”), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's ’s Commitment Percentage with respect to its Revolving Tranche Commitment 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 may not comply 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 Revolving Tranche 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 the terms and conditions of this Agreementset forth herein, during the period from the Effective Date to the Maturity Date, Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") Loans to the Borrower in Dollars as the Borrower may from time ---------------- to time during request for the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitmentpurposes permitted hereby; provided, provided however, that immediately after making each Swing Line Loan, (i) the aggregate amount of Swing Line Lender's Credit Exposure would Loans outstanding shall not exceed the Swing Line Lender's Revolving Tranche CommitmentSublimit, (ii) Swing Line Lender's pro rata share of the aggregate unpaid balance amount of Revolving Loans outstanding plus the aggregate amount of Swing Line Loans would outstanding shall not exceed such Lender's Commitment Percentage of the Swing Line Commitmentamount of the Revolving Loan Commitment minus the Letter of Credit Obligations, and (iii) the Aggregate Revolving Tranche Exposure sum of all Lenders would Loans outstanding shall not exceed the Aggregate amount of the Revolving Tranche CommitmentsLoan Commitment minus the Letter of Credit Obligations. During This is a revolving credit and, subject to the Swing Line Commitment Periodforegoing and the other terms and conditions hereof, the Borrower may borrow, prepay in whole or in part and reborrow under Swing Line Loans as set forth herein without premium or penalty; provided, however, that Swing Line Lender may terminate or suspend the Swing Line Commitment, all at any time in accordance with its sole discretion upon notice to the terms and conditions of this AgreementBorrower. Each Swing Line Loan shall mature bear interest at a rate equal to the rate applicable to Base Rate Loans or at a rate quoted by the Agent and be due and payable on agreed to by the last day of the Interest Period thereforBorrower.
(b) The Unless notified to the contrary by Swing Line Lender shall not be obligated to make any Lender, the Borrower may irrevocably request a 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 upon notice to it and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such . There is no minimum borrowing amount for a Swing Line Loan. The Swing Line Lender will not make Each such request for a Swing Line Loan if the Administrative Agent, or any Lender shall constitute a representation and warranty by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and 5.2 are satisfied. Promptly after receipt of such conditions remain unsatisfied as request, Swing Line Lender shall obtain telephonic verification from the Agent that such Swing Line Loan is permitted hereunder. Upon receiving such verification, Swing Line Lender shall make such Swing Line Loan available to the Borrower. Without the consent of the requested time Required Lenders and 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 Swing Line Lender a risk participation therein in an amount equal to that Lender's Commitment Percentage times the amount of the making such Swing Line Loan. .
(c) Each Swing Line Loan shall be due and bear interest at a fluctuating rate per annum equal to the rate of interest payable on Base Rate Loans or at the day being rate quoted by the earliest Agent and agreed to by the Borrower and interest shall be payable upon demand of Swing Line Lender, on the last day of each month and on the Interest Period applicable thereto, the date on which the Maturity Date. Swing Line Commitment Lender shall have been voluntarily terminated by be responsible for invoicing the Borrower in accordance with Section 2.6, and (or notifying the date Agent to so invoice the Borrower) for such interest. The interest payable on which the Swing Line Loans shall become due and payable pursuant to is solely for the provisions hereofaccount of Swing Line Lender, whether by acceleration or otherwiseexcept following any funding of a risk participation under clause (f) below.
(cd) On any Business Day on which a The Borrower shall repay each Swing Line Loan shall remain unpaid, on the earliest of (i) upon demand made by Swing Line Lender may, in its sole discretion, give notice to and (ii) the Lenders having a Revolving Tranche Commitment and Maturity Date. The Borrower shall repay the Borrower that such outstanding principal amount of each Swing Line Loan shall by payment directly to Swing Line Lender or by Swing Line Lender debiting the Borrower's deposit account at Swing Line Lender not later than 10:00 a.m. (New York City time) for payments hereunder. If the conditions precedent set forth in Section 5.2 can be funded with satisfied, the Borrower may request a borrowing of Revolving Tranche Loans (provided that Loan to repay Swing Line Lender, or, failing to make such notice request, the Borrower shall be deemed to have been automatically given upon requested a Revolving Loan of Base Rate Loans on such payment date pursuant to subsection (f) below. Swing Line Lender shall promptly notify the Agent of each Swing Line Loan and each payment thereof.
(e) If the Borrower fails to timely make any principal or interest payment on any Swing Line Loan, Swing Line Lender shall notify the Agent 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. (New York City 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. (New York City 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 a Default or an Event of Default under Sections 9.1(h) or (i)), in which case a borrowing any other occurrence or event. Any such payment shall not relieve or otherwise impair the obligation of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect the Borrower to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to repay the Swing Line Lender to 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 Borrower is obligated to, but fails to, repay such outstanding a Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche Loan , the funding by Lenders pursuant to each Mandatory Borrowing 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 the amount and in the manner specified in the preceding sentence and Section 5.2 cannot be satisfied on the date specified 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 writing by 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 notwithstanding: (i) against the amount Borrower in respect of such Mandatory Borrowing may not comply payment and shall share, in accordance with that pro rata participation, in any payment made by the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether Borrower with respect to such claim. Any amounts made available by a Default or an Event of Default then exists, (iv) Lender under its risk participation shall be payable by the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount Borrower upon demand of the Commitments Agent, and shall bear interest at such timea rate per annum equal to the Base Rate plus 2% per annum.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars one or more Borrowers from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Company 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 Lender, the Company and the applicable Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section Sections 5 and 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making 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 Swing Line 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 12.2 by crediting such proceeds to an account of the Borrower thereof maintained with the Swing Line Lender or as such Borrower shall otherwise direct in its Borrowing Request therefor.
(cb) On any Business Day on which a Swing Line Loan shall be due and payable and shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the applicable Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances to such Borrower (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice of an Event of Default from the Agent pursuant to Section 10.5, 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 a 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 any 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 of an Event of Default from the Agent pursuant to Section 10.5, such Lender shall promptly make available to the Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Agent specified in Section 12.2, in lawful money of the United States and in immediately available funds. The 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 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 Agent any amount such Lender is required by notice from the Agent to pay in accordance with this Section upon receipt of notice of an Event of Default from the Agent pursuant to Section 10.5 (except in respect of losses, liabilities or other obligations suffered by the Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the 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 Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Agent is reimbursed by a Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans made to such Borrower and such payment relates to an amount previously paid by a Lender pursuant to this Section, the Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) Subject Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time and subject to the other terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, portion of the "Swing Line Loans") Commitments available to the Borrower in Dollars Company from time ---------------- to time during the period from the Closing Date to but excluding the Commitment Termination Date by making Swing Line Commitment Period Loans to Company in an aggregate principal amount at any one time outstanding not to exceed exceeding the amount of the Swing Line CommitmentLoan Commitment to be used for the purposes identified in subsection 2.5A, provided notwithstanding the fact that immediately after making each such Swing Line LoanLoans, (i) the when aggregated with Swing Line Lender's Credit Exposure would not exceed the outstanding Revolving Loans and Swing Line Lender's Revolving Tranche Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Commitment, (ii) the aggregate unpaid balance . The original amount of the Swing Line Loans would not exceed Loan Commitment is $5,000,000; provided that any reduction of the Commitments made pursuant to subsec- tion 2.4A or 2.4B(ii) which reduces the aggregate Commitments to an amount less than the then current amount of the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure Loan Commitment shall result in an automatic corresponding reduction of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Loan Commitment Periodto the amount of the Commitments, as so reduced, without any further action on the Borrower may borrow, prepay in whole part of Company or in part Swing Line Lender. The Swing Line Loan Commitment shall expire on the fifth Business Day prior to the Commitment Termination Date and reborrow under all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Commitment, all Loans shall be paid in accordance with full no later than that date. Amounts borrowed under this subsection 2.1B may be repaid and reborrowed to but excluding the terms and conditions of this Agreementfifth Business Day prior to the Commitment Termination Date. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) The Swing Line Lender shall not be obligated to make any Swing Line Loan at Loans if it has elected not to do so after the occurrence and during the continuation of a time when any Lender shall be Potential Event of Default of which it is aware or an Event of Default. Anything contained 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loancontrary notwithstanding, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan Commitment shall remain unpaidbe subject to the limitation that in no event shall the Total Utilization of Commitments at any time exceed the Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), the Swing Line Lender may, at any time in its sole and absolute discretion, give notice deliver to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded (with a borrowing copy to Company), no later than 8:30 A.M. (Pacific time) on the first Business Day in advance of Revolving Tranche Loans the proposed Funding Date, a notice (provided that such notice which shall be deemed to have been automatically be a Notice of Borrowing given upon the occurrence of a Default or an Event of Default under Sections 9.1(hby Company) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all requesting Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche Loan pursuant Loans that are Base Rate Loans on such Funding Date 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) the amount of such Mandatory Borrowing may not comply with the minimum amount for Swing Line 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.the
Appears in 1 contract
Swing Line Loans. (a) Subject In addition to the terms and conditions other options available to ---------------- Borrower hereunder, up to $5,000,000 of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment shall be available for Swing Line Loans subject to the following terms and conditions. Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.9 hereof. ----------- All Swing Line Loans shall bear interest at the Adjusted ABR Rate. In no event shall the Swing Line Lender be required to fund a Swing Line Loan if it would increase the total aggregate outstanding Revolving Loans by Swing Line Lender hereunder plus its Revolving Percentage of Facility Letter of Credit Obligations to an amount in excess of its Revolving Commitment, (ii) the aggregate unpaid balance . Upon request of the Swing Line Loans would not exceed the Swing Line CommitmentLender, and (iii) the Aggregate each Revolving Tranche Exposure Lender irrevocably agrees to purchase its Revolving Percentage of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 made by the Swing Line Lender has entered into arrangements satisfactory regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of a Default hereunder, provided that -------- no Lender shall be required to have the sum of its total outstanding Revolving Loans plus its Revolving Percentage of Facility Letters of Credit be greater than its Revolving Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Revolving Loan made by the purchasing Revolving Lender and not by the selling Lender for all purposes under this Agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to eliminate the Administrative Agent for the benefit of the Swing Line Lender's risk with respect Lender and all such amounts accruing on or attributable to such defaulting Loans for the period from and after the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the purchasing Lender's participation . If prior to purchasing its Revolving Percentage in a Swing Line Loan one of the events described in Section 8.7 or ----------- 8.8 shall have occurred and such event prevents the consummation of the purchase --- contemplated by preceding provisions, each Revolving Lender will purchase an undivided participating interest in the outstanding Swing Line Loan in an amount equal to its Revolving Percentage of such Swing Line Loan. The From and after the date of each Lender's purchase of its participating interest in a Swing Line Loan, if the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will not make a distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, 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 -------- ------- was received by the Swing Line Loan if Lender and is required to be returned to the Administrative AgentBorrower, or any each Revolving Lender by notice will return to the Swing Line Lender and any portion thereof previously distributed by the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such LoanLender to it. Each No Swing Line Loan shall be due outstanding for more than five (5) days at a time and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwisenot be outstanding for more than a total of ten (10) days during any month.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Swing Line Loans. (a) Subject Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Tranche A Revolving Loan Commitments available to Borrower from time to time during the period from the Restatement Effective Date to but excluding the Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5A, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Tranche A Revolving Loans and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Tranche A Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $20,000,000; provided that the amount of the Swing Line Loan Commitment is subject to reduction as provided in clause (b) of the next paragraph. The Swing Line Loan Commitment shall expire on the Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Commitment Termination Date. Without limiting any of the foregoing, Borrower and Lenders acknowledge and agree that Swing Line Lender may, in its sole discretion and without any obligation to do so, make Swing Line Loans (i) from time to time in an amount sufficient to pay to Managing Agent and Lenders any principal, interest, fees and expenses required hereunder which are not paid when due; provided that Borrower shall be deemed to have submitted an appropriate Notice of Borrowing therefor and the proceeds of such Swing Line Loan shall not be advanced to Borrower but shall be paid directly to Managing Agent for application in accordance with the terms hereof and conditions (ii) at any time upon the request of Borrower and in the sole discretion of Swing Line Lender (and as long as (i) at least one Business Day has passed since the occurrence of the most recent Event of Default of which Lenders have knowledge and (ii) Requisite Lenders have not given notice to Swing Line Lender not to make Swing Line Loans hereunder), and in any amount (subject to the limits set forth in the following paragraph) determined by Swing Line Lender in its sole discretion (an "Interim Advance") regardless of whether an Event of Default shall have occurred and be continuing or Borrower would not be entitled to borrow hereunder upon submission of an appropriate Notice of Borrowing therefor; provided further that anything to the contrary in this AgreementAgreement and the other Loan Documents notwithstanding, Swing Line Loans (including, without limitation, Interim Advances) made pursuant to the preceding sentence shall constitute Swing Line Loans for all purposes hereunder, including, without limitation, for purposes of complying with limitations set by the Tranche A Revolving Loan Commitments and the Borrowing Base, the making of Refunded Swing Line Loans and the purchase of participations therein by Lenders in accordance with the terms hereof. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the following limitations in the amounts and during the periods indicated:
(a) in no event shall the Total Utilization of Tranche A Revolving Commitments at any time exceed the lesser of (i) the Tranche A Revolving Loan Commitments and (ii) the Borrowing Base, in each case as then in effect;
(b) any reduction of the Tranche A Revolving Loan Commitments made pursuant to subsections 2.4A(ii) or 2.4A(iii) which reduces the aggregate Tranche A Revolving Loan Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Tranche A Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Managing Agent or Swing Line Lender; and
(c) in no event shall the aggregate amount of Swing Line Loans exceed the Swing Line Commitment as then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4A(i), Swing Line Lender agrees may, at any time in its sole and absolute discretion, and, in any event, shall, on the fifth Business Day after such Swing Line Loan was made, deliver to Managing Agent (with a copy to Borrower), no later than 12:00 Noon (New York time) at least one Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Lenders to make swing line loans (each a "Tranche A Revolving Loans that are Index Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loan" and, --------------- collectively, Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loancontrary notwithstanding, (i) the proceeds of such Tranche A Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Managing Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Tranche A Revolving Loans are made, Swing Line Lender's Credit Exposure would not exceed Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Tranche A Revolving Loan made by Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance and such portion of the Swing Line Loans would not exceed the deemed to be so paid shall no longer be outstanding as Swing Line Commitment, Loans and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow shall no longer be due under the Swing Line Commitment, all in accordance with the terms and conditions Note of this Agreement. Each Swing Line Loan Lender but shall mature instead constitute part of Swing Line Lender's outstanding Tranche A Revolving Loans and shall be due and payable under the Tranche A Revolving Note of Swing Line Lender. If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of Borrower from Swing Line Lender in bankruptcy, by assignment for the last day benefit of creditors or otherwise, the loss of the Interest Period therefor.
amount so recovered shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5. If, as a result of any bankruptcy or similar proceeding with respect to Borrower, Tranche A Revolving Loans are not made pursuant to this subsection 2.1A(iii) in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans, each Lender shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the unpaid amount together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the office of Swing Line Lender located at the Payment Office. In order to evidence such participation each Lender agrees to enter into a participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to all parties. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon at the Index Rate. Anything contained herein to the contrary notwithstanding, (i) each Lender's obligation to make Tranche A Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, Borrower or any other Person for any reason whatsoever; (b) The the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, financial condition or prospects of Borrower or any of its Subsidiaries; (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 that such obligations of each Lender, other than such obligations with respect to Interim Advances, are subject to the condition that (X) Swing Line Lender believed in good faith that all conditions under Section 4 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made, (Y) such Lender had actual knowledge, by receipt of any notices required to be delivered to Lenders pursuant to subsection 6.1(ix) or otherwise, that any such condition had not been satisfied and such Lender failed to notify Swing Line Lender and Agent in writing that it had no obligation to make Tranche A Revolving Loans until such condition was satisfied (any such notice to be effective as of the date of receipt thereof by Swing Line Lender and Managing Agent), or (Z) the satisfaction of any such condition not satisfied had been waived by Requisite Lenders prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made; and (ii) 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 Loans if it has entered into arrangements satisfactory elected not 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed to have been automatically given upon do so after the occurrence and during the continuation of a Default or an Potential Event of Default under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeDefault.
Appears in 1 contract
Samples: Credit Agreement (Hartmarx Corp/De)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, the The Swing Line Lender agrees shall from time to time from the Effective Date through the day prior to the Termination Date make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") Loans in Dollars to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitmentsuch amounts as Borrower may request, provided that immediately (i) after making each giving effect to such Swing Line Loan, (iA) the aggregate Swing Line Lender's Outstandings shall not exceed $30,000,000 and (B) the aggregate principal outstanding amount of all Revolving Loans and Swing Line Loans plus the Letter of Credit Exposure would Liabilities shall not exceed the Swing Line Lender's aggregate Revolving Tranche CommitmentCommitments, (ii) without the aggregate unpaid balance consent of all of the Revolving Lenders, no Swing Line Loans would not exceed Loan may be made during the Swing Line Commitment, continuation of any Default or Event of Default and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would Swing Line Lender has not exceed the Aggregate Revolving Tranche Commitments. During given at least twenty-four hours prior notice to Borrower that availability under the Swing Line Commitment Period, the is suspended or terminated. Borrower may borrow, prepay in whole or in part repay and reborrow under this Section. Unless notified to the contrary by the Swing Line Lender, borrowings under the Swing Line Commitmentmay be made in amounts which are integral multiples of $500,000 and, all in accordance the case of an IBOR Rate Loan, for the IBOR Interest Period selected by the Borrower, upon telephonic request by the Borrower made to the Administrative Agent not later than 10:00 A.M. (California local time) in the case of requests for Swing Line Loans bearing interest by reference to the IBOR Rate or 1:00 P.M. (California local time) in the case of requests for Swing Line Loans bearing interest by reference to the Base Rate, 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 terms and conditions Swing Line Lender otherwise agrees, each repayment of this Agreement. Each a Swing Line Loan shall mature and be due and payable in an amount which is an integral multiple of $500,000. 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 last day next Domestic Business Day. The Swing Line Lender shall promptly notify the Administrative Agent of the Interest Period thereforSwing Line Outstandings each time there is a change therein.
(b) The Swing Line Lender shall not be obligated responsible for submitting invoices to make any Borrower for such interest. The interest payable on Swing Line Loan at a time when any Lender Loans shall be in default solely for the account of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory unless and until the Lenders fund their participations therein pursuant to it and clause (d) of this Section.
(c) All Swing Line Loans bearing interest by reference to the Borrower to eliminate Base Rate shall be payable on demand made by the Swing Line Lender and in any event on the Termination Date, and all IBOR Rate Loans shall be payable on the maturity of the relevant IBOR Interest Period 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 risk with respect to such defaulting Lender's participation in ’s Pro Rata Share of the Revolving Commitment of such Swing Line Loan. The Upon demand made by the Swing Line Lender, each Revolving Lender will not make a Swing Line Loan if shall, according to its Pro Rata Share of the Administrative AgentRevolving Commitment, or any Lender by notice promptly provide to the Swing Line Lender and the Borrower no later than one Business Day prior its purchase price therefor in an amount equal to the Borrowing Date with respect its participation therein. The obligation of each Revolving Lender to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant so provide its purchase price to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice absolute and unconditional and shall not be deemed to have been automatically given upon affected by the occurrence of a Default or an Event of Default under Sections 9.1(hDefault. Each Revolving Lender that has provided to the Swing Line Lender the purchase price due for its participation in Swing Line Loans shall thereupon acquire a pro rata participation, to the extent of such payment, in the claim of the Swing Line Lender 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 Lender paid the Swing Line Lender its purchase price) or with respect to such claim.
(i)e) In the event that the Swing Line Outstandings are in excess of $10,000,000 on three consecutive Domestic Business Days then, on the next Domestic Business Day (unless Borrower has made other arrangements acceptable to the Swing Line Lender to reduce the Swing Line Outstandings below $10,000,000), in which case Borrower shall request a borrowing Borrowing of Revolving Tranche Loans in an amount sufficient to reduce the Swing Line Outstandings below $10,000,000. In addition, upon the expiry of any IBOR Interest Period or any demand for payment of any 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 an amount sufficient to repay all Swing Line Outstandings (and, for this purpose, the limitations as to the minimum amounts of Base Rate Borrowings set forth in Section 2.01(b) shall not apply). In each case, the Administrative Agent shall automatically provide the responsive Loans made as ABR Advances by each Revolving Lender to the Swing Line Lender (each 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 borrowingdate, a "Mandatory Borrowing")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 all the Revolving Lenders having under their Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect in amounts which are sufficient to its reduce the Swing Line Outstandings as required above. The conditions precedent set forth in Section 3.01 shall not apply to Revolving Tranche Commitment on Loans to be made by the Business Day immediately succeeding Revolving Lenders pursuant to the giving of such noticethree preceding sentences. The proceeds of each Mandatory Borrowing such Revolving Loans shall be remitted paid directly to the Swing Line Lender for application to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeOutstandings.
Appears in 1 contract
Swing Line Loans. (a) Subject The Borrower may, upon delivery to the terms and conditions of this Agreement, the Swing Line Lender agrees to make swing line loans of a Notice of Loan Prepayment (each with a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") copy to the Borrower in Dollars Administrative Agent), at any time or from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitmenttime, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the voluntarily prepay Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under without premium or penalty; provided that, unless otherwise agreed by the Swing Line CommitmentLender, all (A) such Notice of Loan Prepayment must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m., New York City time, on the date of the prepayment, and (B) any such prepayment shall be in accordance with a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess thereof (or, if less, the terms and conditions of this Agreemententire principal thereof then outstanding). Each Swing Line such Notice of Loan Prepayment shall mature specify the date and amount of such prepayment. If such Notice of Loan Prepayment is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such Notice of Loan Prepayment shall be due and payable on the last day date specified therein; provided that any Notice of the Interest Period therefor.
(b) 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 Prepayment delivered by the Borrower to eliminate may state that such Notice of Loan Prepayment is conditioned upon the Swing Line Lender's risk with respect to satisfaction of one or more conditions specified therein, in which case such defaulting Lender's participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Notice of Loan if Prepayment may be revoked by the Administrative Agent, or any Lender Borrower (by notice to the Swing Line Lender and the Borrower no later than one Business Day Administrative Agent on or prior to the Borrowing Date with respect to specified prepayment date) if any such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have condition is not been satisfied and such conditions remain unsatisfied as satisfied. Any prepayment of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made accompanied by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment accrued interest on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeprepaid.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Concentrix Corp)
Swing Line Loans. (a) Subject Swing Line Lender hereby agrees, subject to the terms limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and conditions Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $5,000,000; provided that any reduction of the Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the Revolving Loan Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Swing Line Lender. The Swing Line Loans shall have a final maturity date acceptable to the Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on December 11, 1997 if the Term Loans and the initial Revolving Loans are not made on or before that date. Amounts borrowed under this Agreementsubsection 2.1A(iii) may be prepaid, repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during Loans and the Swing Line Loan Commitment Period shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the lesser of the Revolving Loan Commitments then in effect and (subject to subsection 2.4B(iii)(h)) the then applicable Borrowing Base. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an aggregate principal amount at any one time outstanding not equal to exceed the amount of such Swing Line Commitment, provided that immediately after making each Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line LoanLender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Credit Exposure would not exceed Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance and such portion of the Swing Line Loans would not exceed the deemed to be so paid shall no longer be outstanding as Swing Line Commitment, Loans and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow shall no longer be due under the Swing Line Commitment, all in accordance with the terms and conditions Note of this Agreement. Each Swing Line Loan Lender but shall mature instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and payable on Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the last day amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Interest Period therefor.
Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by 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 Swing Line Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Revolving Lenders in the manner contemplated by subsection 10.5. If for any reason (a) Revolving Loans are not made upon the request of Swing Line Lender as provided in the immediately preceding paragraph in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans or (b) The Swing Line Lender shall not be obligated to make any Swing Line the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Lender shall be deemed to, and hereby agrees to, have purchased a participation in default such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of its obligations under this Agreement unless the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line Lender has entered into arrangements satisfactory an amount equal to it and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such Swing Line Loan. The participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Revolving Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice in form and substance reasonably satisfactory to the Swing Line Lender and the Borrower no later than one other Revolving Lenders. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such amount on demand from such Revolving Lender together with interest thereon at the Federal Funds Effective Rate for three Business Day prior Days and thereafter at the Base Rate. In the event Swing Line Lender receives a payment of any amount in which other Revolving Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the Borrowing Date with respect contrary notwithstanding, each Revolving Lender's obligation to such Swing Line Loan, shall have determined that make Revolving Loans for the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as purpose of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 repaying any Refunded Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On second preceding paragraph and each Revolving Lender's obligation to purchase a participation in any Business Day on which a unpaid Swing Line Loan Loans pursuant to the immediately preceding paragraph shall remain unpaidbe absolute and unconditional and shall not be affected by any circumstance, the including (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender mayLender, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans Company or any other Person for any reason what soever; (provided that such notice shall be deemed to have been automatically given upon b) the occurrence or continuation of a Default or an Event of Default under Sections 9.1(hor a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (i))d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, in which case a borrowing happening or event whatsoever, whether or not similar to any of Revolving Tranche Loans made as ABR Advances (each the foregoing; provided that such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds obligations of each Mandatory Borrowing shall be remitted directly Revolving Lender are subject to the condition that (X) Swing Line Lender believed in good faith that all conditions under Section 4 to repay such outstanding the making of the applicable Refunded Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 Loans or other unpaid Swing Line Lender notwithstanding: Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (iY) the amount satisfaction of any such Mandatory Borrowing may condition not comply satisfied had been waived in accordance with subsection 10.6 prior to or at the minimum amount for time such Refunded Swing Line 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 other unpaid Swing Line Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timewere made.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions hereof and in reliance upon the agreements of the other Lenders set forth in this AgreementSection 2.2, the Swing Line Lender agrees to make swing line loans in Dollars under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's ’s risk with respect to such defaulting Defaulting Lender's ’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, Agent or any Lender 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 Section 6 have not been satisfied or waived 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 Interest Period applicable theretotenth Domestic Business Day after such Swing Line Loan is made, 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 Swing Line Loans shall become due and CHAR1\1889946v5 payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaidbear interest at the Negotiated Rate (or, if the Negotiated Rate is not available, the Term SOFR Daily Floating Rate plus the Applicable Margin). 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 having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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 Section 9.1(h), (i) or (ij)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "“Mandatory Borrowing"), -------------------- ”) shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's ’s Commitment Percentage with respect to its Revolving Tranche Commitment 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 may not comply 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 Revolving Tranche Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of a 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 2.2 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 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 a notice from the Administrative Agent, such Lender shall promptly (and, in any event, no later than the Domestic Business Day immediately succeeding the giving of such notice) 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 Dollars 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 2.2 (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 CHAR1\1889946v5 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 2.2, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (ai) Subject As it is understood that the purpose for the Swing Line Loan is to the terms and conditions of this Agreementfund AGCO's operating account, the Swing Line Lender agrees Loans and repayments to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount Bank may be made on a sweep basis, requiring no formal notification from AGCO. The Swing Line Bank may at its discretion, upon three (3) business days' written notice to AGCO, choose to require written notification of Swing Line Loans from AGCO, but is not required to do so. At any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Bank makes a Swing Line Loan, each Multi-Currency Lender (i) other than the Swing Line Lender's Credit Exposure would not exceed Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Loan in an amount equal to such Lender's Pro Rata Share of such Swing Line Loan and shall be obligated to fund such participation as a Multi-Currency Revolving Tranche CommitmentLoan at such time and in the manner provided below. Each such Multi-Currency Lender's obligation to participate in, purchase and fund such participating interests shall be absolute, irrevocable and unconditional and shall not be affected by any circumstance, including, without limitation, (ii1) the aggregate unpaid balance of any set-off, counterclaim, recoupment, defense or other right which such Multi-Currency Lender or any other Person may have against the Swing Line Loans would Bank or any other Person for any reason whatsoever; (2) the occurrence or continuance of a Default or an Event of Default or the termination of the Multi-Currency Commitments; (3) any adverse change in the condition (financial or otherwise) of AGCO or any other Person; (4) any breach of this Agreement by any Borrower or any other Multi-Currency Lender; or (5) any other circumstance, happening or event whatsoever, whether or not exceed similar to any of the foregoing. Each Borrower hereby consents to each such sale and assignment. Each Multi-Currency Lender agrees to fund its Multi-Currency Commitment Pro Rata Share of an outstanding Swing Line Loan on (x) the Business Day on which demand therefor is made by the Swing Line CommitmentBank, and provided that such demand is made not later than 11:00 A.M. (iiiNew York City time) on such Business Day, or (y) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitmentsfirst Business Day next succeeding such demand if such demand is made after such time. During Upon any such assignment by the Swing Line Commitment PeriodBank to any other Multi-Currency Lender of a participation in a Swing Line Loan, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms Bank represents and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 warrants to such defaulting Lender's participation in other Multi-Currency Lender that it is the legal and beneficial owner of such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agentinterest being assigned by it, but makes no other representation or any Lender by notice to the Swing Line Lender warranty and the Borrower assumes no later than one Business Day prior to the Borrowing Date responsibility with respect to such Swing Line Loan, the Loan Documents or the Borrowers. If and to the extent that any Multi-Currency Lender shall not have determined that so made the conditions set forth amount of such participation in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable available to the Administrative Agent, such Multi-Currency Lender agrees to pay to the Administrative Agent forthwith on the demand such amount together with interest thereon, for each day being the earliest of the last day of the Interest Period applicable thereto, from the date on which of request by the Swing Line Commitment Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate. If such Multi-Currency Lender shall have been voluntarily terminated pay to the Administrative Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a U.S. Dollar Loans made by the Borrower in accordance with Section 2.6such Multi-Currency Lender on such Business Day for purposes of this Agreement, and the date on which outstanding principal amount of the Swing Line Loans Loan made by the Swing Line Bank shall become due and payable pursuant to the provisions hereof, whether be reduced by acceleration or otherwisesuch amount on such Business Day.
(cii) On any Business Day on which a Unless the Swing Line Loan shall remain unpaidLender is the Administrative Agent, the Swing Line Lender may, in its sole discretion, give notice shall provide to the Lenders having a Revolving Tranche Commitment Administrative Agent, on Friday of each week and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on date the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to Administrative Agent notifies the Swing Line Lender to repay such that any Borrower has made a borrowing request or the Administrative Agent otherwise requests the same, an accounting for the outstanding Swing Line LoanLoans in form reasonably satisfactory to the Administrative Agent. Each Lender having a Revolving Tranche At any time that the Unused Multi-Currency Commitment irrevocably agrees to make a Revolving Tranche 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 is less than U.S. $15,000,000, the Swing Line Lender notwithstanding: (i) the amount of Sublimit shall be reduced temporarily to such Mandatory Borrowing may not comply with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, lesser amount; and
(iii) whether Unless a Default or an Event of Default then exists, the Swing Line Lender shall give AGCO and the Administrative Agent at least seven (iv7) days' prior written notice before exercising its discretion herein not to make Swing Line Loans. AGCO must give ten (10) days' prior written notice to the Borrowing Date Administrative Agent of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount any change in designation of the Commitments at Swing Line Lender. The replaced Swing Line Lender shall continue to be a "Swing Line Lender" for purposes of repayment of any Swing Line Loans made prior to such timereplacement and outstanding after such replacement.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
Swing Line Loans. (a) 1. Subject to the terms and conditions of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line LoanSWING LINE LOAN" and, --------------- collectively, the "Swing Line LoansSWING LINE LOANS") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line CommitmentPeriod, provided that PROVIDED THAT immediately after making each Swing Line Loan, (i) a. the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche CommitmentCredit Commitment Amount, (ii) b. the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line CommitmentCommitment Amount, and (iii) c. the Aggregate Revolving Tranche Credit Exposure of all Lenders would not exceed the Aggregate Revolving Tranche CommitmentsCredit Commitment Amount. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each The initial Swing Line Loan shall mature and be due and payable made either contemporaneously with or after the making of the first Revolving Credit Loans on the last day of the Interest Period thereforfirst Borrowing Date.
(b) 2. 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day 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 2.62.7, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) 3. On any Business Day on which a Swing Line Loan shall be due and payable and shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "Mandatory BorrowingMANDATORY BORROWING"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.such
Appears in 1 contract
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees to may, but shall not be obligated to, make swing line loans in reliance upon the agreements of the other Lenders set forth in this Section 2.04 in Dollars (each such loan, a "“Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"”) to the Borrower in Dollars Borrowers from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and Letter of Credit Obligations of the Revolving Credit Lender acting as Swing Line Lender, may exceed the amount of such Revolving Credit Lender’s Revolving Credit Commitment; provided, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Total Revolving Credit Exposure would Outstandings shall not exceed the Swing Line Lender's Revolving Tranche CommitmentMaximum Borrowing Amount, and (ii) the aggregate unpaid balance Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, and provided, further, that the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits and subject to the discretion of the Swing Line Loans would not exceed the Lender to make Swing Line CommitmentLoans, and (iii) subject to the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodother terms and conditions hereof, the Borrower Borrowers may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.06(a)(ii), and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan2.04. Each Swing Line Loan shall be due and payable on a Base Rate Revolving Credit Loan. Immediately upon the day being the earliest making of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan Loan, each Revolving Credit Lender shall remain unpaidbe deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender may, a risk participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or in an Event of Default under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.83
Appears in 1 contract
Swing Line Loans. (a) Subject During the Revolving Commitment Period, subject to the terms and conditions of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaidthis Credit Agreement, the Swing Line Lender may, in its sole discretion, give notice make Swing Line Loans to the Lenders having a Revolving Tranche Commitment and Borrower as the Borrower may from time to time request for the purposes permitted hereby; provided, however, that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 outstanding Swing Line Loans then outstandingshall not exceed the Swing Line Sublimit, (viii) the Revolving Loans of each Lender shall not exceed the amount of such Lender’s Revolving Commitment, and (iii) the Revolving Loans of all Lenders shall not exceed the Aggregate Revolving Tranche Exposure Committed Amount at any time. Subject to the foregoing and the other terms and conditions hereof, the Borrower may borrow, prepay and reborrow Swing Line Loans as set forth herein without premium or penalty; provided, however, that Swing Line Lender may terminate or suspend this swing line subfacility at any time in its sole discretion upon notice to the Borrower.
(b) Unless notified to the contrary by Swing Line Lender, the Borrower may irrevocably request a Swing Line Loan upon notice to the Swing Line Lender. There is no minimum borrowing amount for a Swing Line Loan. Each such time request for a Swing Line Loan shall constitute a representation and (vii) warranty by the Borrower that the conditions set forth in Section 5.2 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 the Required Revolving 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 Revolving Lender shall be deemed to have purchased from the Swing Line Lender a risk participation therein in an amount equal to that Lender’s Revolving Commitment Percentage times the amount of the Commitments Swing Line Loan.
(c) Each Swing Line Loan shall bear interest at a fluctuating rate per annum equal to the Swing Line Rate and such interest shall be payable upon demand of the Swing Line Lender, on the last day of each month and on the Revolving Termination Date. The Swing Line Lender shall be responsible for invoicing the Borrower (or notifying the Agent to so invoice the Borrower) for such interest. The interest payable on Swing Line Loans is solely for the account of the Swing Line Lender, except following any funding of a risk participation under clause (f) below.
(d) The Borrower shall repay each Swing Line Loan on the earliest of (i) demand made by Swing Line Lender and (ii) the Revolving Termination Date. The Borrower shall repay the principal amount of each Swing Line Loan by payment directly to Swing Line Lender or by Swing Line Lender debiting the Borrower’s deposit account at Swing Line Lender not later than 12:00 noon (Milwaukee, Wisconsin time) for payments hereunder. If the conditions precedent set forth in Section 5.2 can be satisfied, the Borrower may request a Revolving Loan to repay Swing Line Lender, or, failing to make such request, the Borrower shall be deemed to have requested a Revolving Loan of Prime Rate Loans on such payment date pursuant to subsection (f) below. Swing Line Lender shall promptly notify the Agent of each Swing Line Loan and each payment thereof.
(e) If the Borrower fails to timely make any principal or interest payment on any Swing Line Loan, Swing Line Lender shall notify the Agent of such fact and the unpaid amount. The Agent shall promptly notify each Revolving Lender of its Revolving Commitment Percentage of such amount by 1:00 p.m. (Milwaukee, Wisconsin time). Each Revolving Lender shall make funds in an amount equal to its Revolving Commitment Percentage of such amount available to the Agent at the Agent’s payment office not later than 3:00 p.m. (Milwaukee, Wisconsin time) for payments hereunder on the same Business Day. The obligation of each Revolving 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 to repay the Swing Line Lender 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 Borrower is obligated to, but fails to, repay a Swing Line Loan, the funding by Revolving Lenders pursuant to the previous subsection shall be deemed to be a borrowing of Prime Rate Loans (without regard to the minimum amount therefor) deemed requested by the Borrower. If the conditions precedent set forth in Section 5.2 cannot be satisfied on the date the Borrower is obligated to make, but fails to make, such payment, the funding by Revolving 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 Revolving 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 and shall share, in accordance with that pro rata participation, in any payment made by the Borrower with respect to such claim. Any amounts made available by a Revolving Lender 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 the Prime Rate plus 2% per annum.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") in Dollars to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line CommitmentPeriod, provided that immediately after making each Swing Line Loangiving effect thereto, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would shall not exceed the Swing Line CommitmentCommitment Amount, and (iiiii) the Aggregate Revolving Tranche Credit Exposure of all Lenders would shall not exceed the Aggregate Revolving Tranche CommitmentsCredit Commitment Amount. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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, Agent or any Lender Lender, by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest to occur of the last day of the Interest Period applicable thereto, fifteen days prior to the Maturity Date, 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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(h9.1(g) or (ih)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the (i) such Business Day if such notice was given prior to 11:00 a.m. or (ii) the immediately succeeding the giving of Business Day if such notice. notice was given after 11:00 a.m. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Credit Exposure at such time and (vii) the amount of the Commitments Aggregate Revolving Credit Commitment Amount at such time.
(d) Upon each receipt by a Lender of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, 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 amount of the Swing Line Loans plus all accrued and unpaid interest thereon (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 2.3 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be absolute and 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.
(e) In furtherance of subsection (d) above, upon each receipt by a Lender of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, 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 shall indemnify and 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 to pay in accordance with this Section 2.3 (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 be required to 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 equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Rate, and (ii) thereafter, the Federal Funds 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.
(f) 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 pay over such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Building Materials Investment Corp)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, 13.26.1 Unless the Swing Line Lender agrees to make swing line loans (each a "and the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Loan" and, --------------- collectively, Lender will promptly request the "Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans". The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Borrower in Dollars from time ---------------- to time during Swing Line Lender. At all times thereafter the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not shall be treated as reduced to exceed the Swing Line Commitmentnil, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Shares of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender's Revolving Tranche Commitment, Lender will again promptly request the Agent on behalf of the Relevant Borrower (iiand for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the aggregate unpaid balance Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Section 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Loans would not exceed Lender such Lender's Rateable Share of each Advance requested by the Swing Line Commitment, and (iii) Lender on behalf of the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Relevant Borrower to repay Swing Line Commitment PeriodLoans made by such Swing Line Lender.
13.26.2 Except as provided in Section 13.26.4, the Borrower may borrowobligations of each Lender under Section 13.26.1 are unconditional, prepay in whole shall not be subject to any qualification or in part exception whatsoever and reborrow under the Swing Line Commitment, all shall be performed in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day Agreement under all circumstances including:
13.26.2.1 any lack of validity or enforceability of the Interest Period therefor.Relevant Borrower's obligations under Section 2.6 or Article 6;
(b) The 13.26.2.2 any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3 the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4 the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender shall not be obligated or the Issuing Bank against the Relevant Borrower.
13.26.3 If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Loan at a Lender pursuant to Section 13.26.1 (the balance thereof for the time when any Lender shall be being unpaid being referred to in default of its obligations under this Agreement unless Section 13.26.3 as an "overdue amount") then until the Swing Line Lender has entered into arrangements satisfactory to it received payment of the overdue amount (plus interest as provided below) in full (and without in any way limiting the Borrower to eliminate rights of the Swing Line Lender's risk with Lender in respect to of such defaulting Lender's participation in such Swing Line Loan. The failure):
13.26.3.1 the Swing Line Lender will not make a Swing Line shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan if Document; and
13.26.3.2 the Administrative Agent, or any overdue amount shall bear interest payable by the Defaulting Lender by notice to the Swing Line Lender and at the rate payable by the Relevant Borrower no later than one Business Day prior in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4 If for any reason, determined by the Agent to be prejudicial to the Borrowing Date with respect interests of any of the Syndicate, an Advance may not be made pursuant to Section 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line LoanLender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall however, be due and payable on the day being the earliest of the last day of the Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated made by the Borrower Lenders in accordance with Section 2.6, the event and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the extent such Swing Line Lender may, has not been reimbursed in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 full by the Swing Line Lender notwithstanding: (i) Relevant Borrower for interest on the amount of such Mandatory Borrowing may not comply with unreimbursed Swing Line Advances.
13.26.5 The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the minimum Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Section 13.26.4, or of any other amount for Loans from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required hereunderto be returned, (ii) whether such Lender shall promptly return to such Swing Line Lender any condition specified portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeconnection therewith.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line CommitmentCommitment Amount, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Revolving Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche CommitmentCredit Commitment Amount, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line CommitmentCommitment Amount, and (iii) the Aggregate Revolving Tranche Credit Exposure of all Lenders would not exceed the Aggregate Revolving Tranche CommitmentsCredit Commitment Amount. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each No Swing Line Loan shall mature and be due and payable made prior to the making of the first Revolving Credit Loans on the last day of the Interest Period thereforfirst Borrowing Date.
(b) 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 LoanLoan shall have been made for the benefit of the Swing Line Lender and such arrangements are satisfactory to the Swing Line Lender. 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 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 being the earliest to occur of the last day of the Swing Line Interest Period applicable thereto, the fifth Business Day prior to the Revolving Credit Commitment Termination Date, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower or the Swing Line Lender in accordance with Section 2.6, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which Upon each receipt by a Swing Line Loan Lender of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, such Lender shall remain unpaidpurchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender may, a participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan Loans (including accrued interest thereon) in an amount (the "Swing Line Participation Amount") equal to the product of (i) its Com- mitment Percentage, and (ii) the aggregate outstanding principal balance of the Swing Line Loans plus all accrued and unpaid interest thereon. 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 2.3 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed absolute and unconditional and without regard to have been automatically given upon the occurrence of a any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of subsection (c) immediately above, upon each receipt by a Lender of notice of an Event of Default under Sections 9.1(h) or (i))from the Administrative Agent pursuant to Section 10.5, 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 which case a borrowing lawful money of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- the United States and in immediately available funds. The Administrative Agent shall be deliver the payments made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect Lender pursuant to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly preceding sentence to the Swing Line Lender to repay such outstanding Swing Line Loanpromptly upon receipt thereof in like funds as received. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche Loan pursuant to each Mandatory Borrowing in shall indemnify and hold harmless the amount Administrative Agent and in the manner specified in the preceding sentence 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 to pay in accordance with this Section 2.3 (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 be required to pay interest to the Administrative Agent for the account of the Swing Line Lender from the date specified such amount was due until paid in writing full, on the unpaid portion thereof, at a rate of interest per annum equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Rate, and (ii) thereafter, the Federal Funds Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to the Swing Line Lender notwithstanding: upon receipt thereof in like funds as received.
(ie) Whenever the amount of such Mandatory Borrowing may not comply with Administrative Agent is reimbursed by the minimum amount Borrower, 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 Revolving Tranche Exposure at such time and (vii) the amount account of the Commitments at Swing Line Lender, for any payment in connection with Swing Line Loans and such timepayment relates to an amount previously paid by a Lender pursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees to Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in its sole discretion make swing line loans in Dollars (each such loan, a "“Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time on any Business Day during the Availability Period with respect to the Revolving Credit Facility in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Revolving Credit Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the Swing Line amount of such Revolving Credit Lender’s Revolving Credit Commitment, ; provided that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Total Revolving Credit Exposure would Outstandings shall not exceed the Swing Line Lender's Revolving Tranche Commitment, Credit Facility at such time and (ii) the aggregate unpaid balance Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment; provided further that the Borrower shall not use the proceeds of any Swing Line Loans would not exceed the Loan to refinance any outstanding Swing Line CommitmentLoan. Within the foregoing limits, and (iii) subject to the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodother terms and conditions hereof, the Borrower may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.05, and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this AgreementSection 2.04. Each 65833673_5 Swing Line Loan shall mature and be due and payable on a Base Rate Loan. Immediately upon the last day making of the Interest Period therefor.
(b) The a Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Loan, each Revolving Credit Lender shall be in default of its obligations under this Agreement unless deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the 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 in an amount equal to the Swing Line Lender and product of such Revolving Credit Lender’s Applicable Revolving Credit Percentage times the Borrower no later than one Business Day prior to the Borrowing Date with respect to amount of such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Swing Line Loans. (a) Subject to all of the terms and conditions of this Agreementhereof, the Swing Line Lender Harrxx Xxxst and Savings Bank ("Harrxx Xxxk") agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the each Borrower in Dollars from time ---------------- to time during the under a swing line of credit ("Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line CommitmentLine"); provided, provided however, that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance amount of the Swing Line Loans would at any time outstanding to all Borrowers taken together shall not exceed the Swing Line Commitment; provided further, and (iii) however, that the Aggregate aggregate amount of the Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During Loans, the Swing Line Loans and the L/C Obligations outstanding at any one time from all the Borrowers taken together shall not at any time exceed the lesser of the Commitments then in effect or the Available Borrowing Base as then determined and computed for all the Borrowers; provided still further, however, that the aggregate amount outstanding at any time on Revolving Loans and Swing Line Loans made to each Borrower, and L/C Obligations in respect of Letters of Credit issued for such Borrower's sole or joint account, shall not exceed such Borrower's Available Borrowing Base as then determined and computed. The Swing Line Commitment Period, shall be available to the Borrowers and may be availed of by each Borrower from time to time and borrowings thereunder may borrow, prepay in whole or in part be repaid and reborrow under used again during the period ending on the Termination Date. Without regard to the face principal amount of the Swing Line CommitmentNote, the actual principal amount at any time outstanding and owing by the Borrowers on account of the Swing Line Note on any date during the period ending on the Termination Date shall be the sum of all in accordance with the terms and conditions of this AgreementSwing Line Loans then or theretofor made thereon through such date less all payments actually received thereon through such date. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period selected therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars one or more Borrowers from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Company 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 Lender, the Company and the applicable Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section Sections 5 and 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making 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 Swing Line 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 12.2 by crediting such proceeds to an account of the Borrower 22 DRAFT 11/15/96 thereof maintained with the Swing Line Lender or as such Borrower shall otherwise direct in its Borrowing Request therefor.
(cb) On any Business Day on which a Swing Line Loan shall be due and payable and shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the applicable Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances to such Borrower (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Credit Exposure at such time and (vii) the amount of the Commitments at such time.
(c) Upon each receipt by a Lender of notice of an Event of Default from the Agent pursuant to Section 10.5, 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 a 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 any 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 of an Event of Default from the Agent pursuant to Section 10.5, such Lender shall promptly make available to the Agent for the account of the Swing Line Lender its Swing 23 Line Participation Amount at the office of the Agent specified in Section 12.2, in lawful money of the United States and in immediately available funds. The 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 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 Agent any amount such Lender is required by notice from the Agent to pay in accordance with this Section upon receipt of notice of an Event of Default from the Agent pursuant to Section 10.5 (except in respect of losses, liabilities or other obligations suffered by the Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest to the 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 Agent shall distribute such interest payments to the Swing Line Lender upon receipt thereof in like funds as received.
(e) Whenever the Agent is reimbursed by a Borrower for the account of the Swing Line Lender for any payment in connection with Swing Line Loans made to such Borrower and such payment relates to an amount previously paid by a Lender pursuant to this Section, the 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 of this Agreementset forth herein, the Swing Line Lender agrees to make swing line loans (each such loan, a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time on any Business Day during the Availability Period with respect to the Revolving Credit Facility in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the Swing Line amount of such Lender's Commitment; provided, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would Total Outstandings shall not exceed the Swing Line Lender's Revolving Tranche CommitmentAggregate Commitments, and (ii) the aggregate unpaid balance Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans would shall not exceed the Swing Line such Lender's Revolving Credit Commitment, and (iii) provided, further, that the Aggregate Revolving Tranche Exposure Borrower shall not use the proceeds of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the any Swing Line Commitment PeriodLoan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.05, and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan2.04. Each Swing Line Loan shall be due and payable on a Base Rate Loan. Immediately upon the day being the earliest making of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan Loan, each Revolving Credit Lender shall remain unpaidbe deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender may, a risk participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing in an amount equal to the product of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) Pro Rata Share times the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeSwing Line Loan.
Appears in 1 contract
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset 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 swing line loans (each such loan, a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 Applicable Revolving Credit Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender's Revolving Credit Commitment; provided, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Total Revolving Credit Exposure would Outstandings shall not exceed the Swing Line Lender's Revolving Tranche CommitmentCredit Facility at such time, and (ii) the aggregate unpaid balance Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender at such time, plus such Revolving Credit Lender's Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Revolving Credit Lender's Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans would at such time shall not exceed the Swing Line such Lender's Revolving Credit Commitment, and (iii) provided further that the Aggregate Revolving Tranche Exposure Borrower shall not use the proceeds of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the any Swing Line Commitment PeriodLoan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.05, and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan2.04. Each Swing Line Loan shall be due and payable on a Base Rate Loan. Immediately upon the day being the earliest making of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan Loan, each Revolving Credit Lender shall remain unpaidbe deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender may, a risk participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing in an amount equal to the product of such Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Credit Lender's Commitment Applicable Revolving Credit Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) times the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeSwing Line Loan.
Appears in 1 contract
Swing Line Loans. (ai) Subject As it is understood that the purpose for the Swing Line Loan is to the terms and conditions of this Agreementfund AGCO’s operating account, the Swing Line Lender agrees Loans and repayments to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount Bank may be made on a sweep basis, requiring no formal notification from AGCO. The Swing Line Bank may at its discretion, upon three (3) Business Days’ written notice to AGCO, choose to require written notification of Swing Line Loans from AGCO, but is not required to do so. At any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Bank makes a Swing Line Loan, each Lender (i) other than the Swing Line Lender's Credit Exposure would not exceed Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Loan in an amount equal to such Lender's ’s Pro Rata Share (calculated in accordance with Section 2.11(e)(iv) if any Lender is a Defaulting Lender) of such Swing Line Loan and shall be obligated to fund such participation as a Revolving Tranche CommitmentLoan at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such participating interests shall be absolute, irrevocable and unconditional and shall not be affected by any circumstance, including, without limitation, (ii1) the aggregate unpaid balance of any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Loans would Bank or any other Person for any reason whatsoever; (2) the occurrence or continuance of a Default or an Event of Default or the termination of the Revolving Loan Commitments; (3) any adverse change in the condition (financial or otherwise) of AGCO or any other Person; (4) any breach of this Agreement by any Borrower or any other Lender; or (5) any other circumstance, happening or event whatsoever, whether or not exceed similar to any of the foregoing. Each Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund its Pro Rata Share (calculated in accordance with Section 2.11(e)(iv) if any Lender is a Defaulting Lender) of an outstanding Swing Line Loan on (x) the Business Day on which demand therefor is made by the Swing Line CommitmentBank, and provided that such demand is made not later than 11:00 a.m. (iiiNew York City time) on such Business Day, or (x) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitmentsfirst Business Day next succeeding such demand if such demand is made after such time. During Upon any such assignment by the Swing Line Commitment PeriodBank to any other Lender of a participation in a Swing Line Loan, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms Bank represents and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 warrants to such defaulting Lender's participation in other Lender that it is the legal and beneficial owner of such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agentinterest being assigned by it, but makes no other representation or any Lender by notice to the Swing Line Lender warranty and the Borrower assumes no later than one Business Day prior to the Borrowing Date responsibility with respect to such Swing Line Loan, the Loan Documents or the Borrowers. If and to the extent that any Lender shall not have determined that so made the conditions set forth amount of such participation in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable available to the Administrative Agent, such Lender agrees to pay to the Administrative Agent forthwith on the demand such amount together with interest thereon, for each day being the earliest of the last day of the Interest Period applicable thereto, from the date on which of request by the Swing Line Commitment Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate. If such Lender shall have been voluntarily terminated pay to the Administrative Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a U.S. Dollar Revolving Loan made by the Borrower in accordance with Section 2.6such Lender on such Business Day for purposes of this Agreement, and the date on which outstanding principal amount of the Swing Line Loans Loan made by the Swing Line Bank shall become due and payable pursuant to the provisions hereof, whether be reduced by acceleration or otherwisesuch amount on such Business Day.
(cii) On any Business Day on which a Unless the Swing Line Loan shall remain unpaidBank is the Administrative Agent, the Swing Line Lender may, in its sole discretion, give notice Bank shall provide to the Lenders having Administrative Agent, on Friday of each week and on each date the Administrative Agent notifies the Swing Line Bank that any Borrower has made a Revolving Tranche Commitment and borrowing request or the Borrower that such Administrative Agent otherwise requests the same, an accounting for the outstanding Swing Line Loans in form reasonably satisfactory to the Administrative Agent. At any time that the Unused Revolving Loan shall be funded with a borrowing of Revolving Tranche 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) or (i))Commitment is less than U.S. $25,000,000, in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender Sublimit shall be reduced temporarily to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, lesser amount; and
(iii) whether Unless a Default or an Event of Default then exists, the Swing Line Bank shall give AGCO and the Administrative Agent at least seven (iv7) days’ prior written notice before exercising its discretion herein not to make Swing Line Loans. AGCO must give ten (10) days’ prior written notice to the Borrowing Date Administrative Agent of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount any change in designation of the Commitments at Swing Line Bank. The replaced Swing Line Bank shall continue to be a “Swing Line Bank” for purposes of repayment of any Swing Line Loans made prior to such timereplacement and outstanding after such replacement.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
Swing Line Loans. (a) Subject to During the terms and conditions of this AgreementCommitment Period, the Swing Line Lender agrees to shall make swing line revolving credit loans (each a "Swing Line Loan" and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at on any one time outstanding not to exceed the Swing Line Commitment, Business Day; provided that immediately after making each Swing Line Loan, (i) the aggregate principal amount of Swing Line Lender's Credit Exposure would Loans shall not exceed 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's , may exceed the amount of such Lender’s Revolving Tranche Commitment, (ii) with respect to the Lenders collectively, the aggregate unpaid balance principal amount of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would Obligations shall not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment PeriodCommitted Amount, (iii) the Borrower may borrow, prepay in whole or in part and reborrow under shall not use the Swing Line Commitment, all in accordance with the terms and conditions proceeds of this Agreement. Each any Swing Line Loan shall mature to refinance any outstanding Swing Line Loan and be due and payable on (iv) the last day of the Interest Period therefor.
(b) The Swing Line Lender shall not 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 Borrowing may have, Fronting Exposure. Swing Line Loans shall be Daily Floating Eurodollar Rate Loans, and may be repaid and reborrowed in accordance with the provisions hereof. Immediately upon the making of a time when any Swing Line Loan, each Lender shall be in default of its obligations under this Agreement unless deemed to, and hereby irrevocably and unconditionally agrees to, purchase from 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 a participation interest 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 in an amount equal to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to product of such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such LoanLender’s Revolving Commitment Percentage thereof. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a No Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans for longer than five (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(h5) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeDays.
Appears in 1 contract
Samples: Credit Agreement (Griffin-American Healthcare REIT IV, Inc.)
Swing Line Loans. (a) Subject to the terms and conditions of set forth in this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower Loans in Dollars until the Maturity Date in such amounts as Borrower may from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitmentrequest; PROVIDED, provided HOWEVER, that immediately after making each Swing Line Loan, (i) the aggregate principal amount of all Swing Line Lender's Credit Exposure would Loans shall not exceed the Swing Line Lender's Revolving Tranche Commitment, Sublimit and (ii) the aggregate unpaid balance Equivalent Amount in Dollars of the Outstanding Obligations of each Lender (EXCLUDING any Lender's Competitive Loans and Swing Line Loans would Lender's Swing Line Loans) shall not exceed such Lender's Commitment and the Equivalent Amount in Dollars of the Outstanding Obligations of all Lenders shall not exceed the Swing Line Commitmentcombined Commitments at any time. This is a revolving credit and, subject to the foregoing and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodother terms and conditions hereof, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this AgreementLoans as set forth herein without premium or penalty. Each Swing Line Loan shall mature be a Base Rate Loan and be due and shall bear interest at the rate of interest (including Applicable Amount, if any) otherwise payable on the last day of the Interest Period thereforBase Rate Loans or shall bear interest at such other rate mutually agreeable to Swing Line Lender and Borrower.
(b) The Unless notified to the contrary by Swing Line Lender, Borrower may irrevocably request a Swing Line Loan in Dollars on any Business Day in a Minimum Amount therefor by delivering a Request for Extension of Credit therefor by Requisite Notice to Swing Line Lender and Administrative Agent not later than the Requisite Time therefor. Promptly after receipt of such request, Swing Line Lender shall not obtain telephonic verification from Administrative Agent that such Swing Line Loan is permitted hereunder. Upon receiving such verification, Swing Line Lender shall make such Swing Line Loan available to Borrower. Without the consent of Requisite Lenders and Swing Line Lender, no Swing Line Loan shall be obligated made if to make the actual knowledge of the Swing Line Lender there exists a Default or Event of Default. Upon the making of each Swing Line Loan, each Lender shall be deemed to have purchased from Swing Line Lender a risk participation therein in an amount equal to such Lender's Pro Rata Share TIMES the amount of the Swing Line Loan.
(c) Swing Line Lender shall be responsible for invoicing Borrower for interest on the Swing Line Loans. Unless and until any Swing Line Loan at is converted into a time when any Lender Borrowing of Base Rate Loans or a funding by Lenders of their participation therein, the interest payable on Swing Line Loans is solely for the account of Swing Line Lender.
(d) Borrower shall be in default repay each Swing Line Loan not later than the Requisite Time for payments hereunder upon the earlier of its obligations under this Agreement unless the (i) demand made by Swing Line Lender has entered into arrangements satisfactory (with a copy to it Administrative Agent) and (ii) the Borrower Maturity Date. Payments shall be made directly to eliminate the Swing Line Lender's risk with respect . If the conditions precedent set forth in SECTION 5.02 can be satisfied, Borrower may request a Borrowing of Committed Loans to repay Swing Line Lender pursuant to SECTION 2.02 or, failing to make such request, Borrower shall be deemed to have requested a Borrowing of Base Rate Loans (without regard to the Minimum Amount therefor) on such payment date in a principal amount equal to such defaulting payment. Swing Line Lender shall promptly notify Administrative Agent of each Swing Line Loan and each payment thereof.
(e) If Borrower fails to timely make (by payment, a Borrowing or a deemed Borrowing) any payment of principal of or interest on any Swing Line Loan to Swing Line Lender, Swing Line Lender shall notify Administrative Agent of such fact and the unpaid amount. Administrative Agent shall promptly notify each Lender of its Pro Rata Share of such unpaid amount by Requisite Notice, and each Lender shall make its Pro Rata Share of such unpaid amount available to Administrative Agent at Administrative Agent's Office not later than the Requisite Time for payments hereunder on the following 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 such or any other Event of Default or any other event. Each Lender's payment shall be deemed to be a funding of such Lender's participation in such Swing Line Loan. The , 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 will not make a Swing Line Loan if the Administrative Agentagainst Borrower in respect of such payment and shall share, or in accordance with that pro rata participation, in any Lender payment made by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, claim. Any amounts made available by a Lender under its risk participation shall have determined that not relieve or otherwise impair the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as obligation of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the repay Swing Line Lender mayfor any amount of Swing Line Loans, in its sole discretiontogether with interest as provided herein, give notice and such amounts made available shall be payable by Borrower upon demand of Administrative Agent, and shall bear interest at a rate per annum equal to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeRate.
Appears in 1 contract
Samples: Credit Agreement (Tech Data Corp)
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees to Lender, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.06, shall make swing line loans (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 Dollars from in an aggregate amount not to exceed at any time ---------------- to time during outstanding the amount of the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Revolving Percentage of the Outstanding Amount of Revolving Loans and Letter of Credit Obligations of the Revolving Lender acting as Swing Line Lender, may exceed the Swing Line amount of such Revolving Lender’s Revolving Commitment; provided, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would Revolving Principal Obligation shall not exceed the Swing Line Lender's Maximum Revolving Tranche Commitment, (ii) the aggregate unpaid balance Revolving Credit Exposure of any Revolving Lender at such time shall not exceed such Revolving Lender’s Revolving Commitment, (iii) the Swing Line Loans Revolving Principal Obligation shall not exceed the Available Revolving Amount, and (iv) prior to the Collateral Termination Date, the Total Exposure would not exceed the Swing Line Commitment, Borrowing Base; and (iiiv) from and after the Aggregate Revolving Tranche Exposure of all Lenders Collateral Termination Date, the Total Unsecured Indebtedness would not exceed the Aggregate Revolving Tranche Commitments. During Borrowing Base and provided, further, that the Borrower shall not use the proceeds of any Swing Line Commitment PeriodLoan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrowborrow under this Section 2.06, prepay in whole or in part under Section 2.09, and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this AgreementSection 2.06. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Base Rate Loan. Each Swing Line Loan shall be due and payable on the day being the earliest within ten (10) Business Days of the last day of date such Swing Line Loan was provided and Borrower hereby agrees (to the Interest Period applicable thereto, extent not refinanced as contemplated by Section 2.08(c) below) to repay each Swing Line Loan on or before the date on which that is ten (10) Business Days from the date such Swing Line Loan was provided. Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Commitment shall have been voluntarily terminated by the Borrower Lender a risk participation in accordance with Section 2.6, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a such Swing Line Loan shall remain unpaidin an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swing Line Loan. Notwithstanding anything to the contrary herein, the Swing Line Lender may, in its sole discretion, give notice shall not have any obligation to make any Swing Line Loans from and after the Sixth Amendment Effective Date prior to the Lenders having a Revolving Tranche Commitment and date when the Borrower Borrowers shall have delivered to the Administrative Agent evidence that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed to the Specified Credit Conditions have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timesatisfied.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's ’s risk with respect to such defaulting Defaulting Lender's ’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 Section 6 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaid, 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 may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Credit Agreement (CVS Caremark Corp)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreement, the Swing Line Each Multicurrency Lender agrees to make swing line loans purchase its pro rata share (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"determined --- ---- by its Revolving Multicurrency Commitment Percentage) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in of an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Multicurrency Swing Line Loan, and the Fronting Bank agrees to purchase its pro rata shares (idetermined by the aggregate --- ---- amount of the Non-Multicurrency Lenders' Commitment Percentages) on (a) the Business Day on which demand therefor is made by the Multicurrency Swing Line Lender's Credit Exposure would not exceed the Lender which made such Multicurrency Swing Line Lender's Revolving Tranche CommitmentLoan, provided that notice of such demand is given not later than -------- 11:00 a.m. (iiApplicable Belgium Time) on such Business Day or (b) the aggregate unpaid balance first Business Day next succeeding such demand if -76- notice of the such demand is given after such time. Upon any such assignment by a Multicurrency Swing Line Loans would not exceed Lender to any other Multicurrency Lender or the Fronting Bank of a portion of a Multicurrency Swing Line CommitmentLoan, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the such Multicurrency Swing Line Commitment PeriodLender represents and warrants to such other Multicurrency Lender and the Fronting Bank that such Multicurrency Swing Line Lender is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Multicurrency Swing Line Loan, the Borrower Loan Documents or any Obligor. If and to the extent that any Multicurrency Lender or the Fronting Bank, as the case may borrowbe, prepay in whole or in part and reborrow under shall not have so made the Swing Line Commitment, all in accordance with the terms and conditions amount of this Agreement. Each such Multicurrency Swing Line Loan available to the Foreign Agent, such Multicurrency Lender and the Fronting Bank, as the case may be, agrees to pay to the Foreign Agent for the account of such Multicurrency Swing Line Lender forthwith on demand by such Multicurrency Swing Line Lender such amount together with interest thereon, for each day from the date of demand by such Multicurrency Swing Line Lender until the date such amount is paid to the Foreign Agent, at the Overnight Rate. If such Multicurrency Lender or the Fronting Bank, as the case may be, shall mature pay to the Foreign Agent such amount for the account of such Multicurrency Swing Line Lender on any Business Day, such amount so paid in respect of principal shall constitute a Multicurrency Swing Line Loan made by such Multicurrency Lender and be due the Fronting Bank on such Business Day for purposes of this Credit Agreement, and payable on the last day outstanding principal amount of the Interest Period therefor.
(b) The Multicurrency Swing Line Loan made by such Multicurrency 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 reduced by such defaulting Lender's participation in amount on 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwiseDay.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Multicurrency Revolving Credit and Term Loan Agreement (Samsonite Holdings Inc)
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset 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 swing line loans (each such loan, a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 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, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would Total Outstandings shall not exceed the Swing Line Lender's Revolving Tranche CommitmentAggregate Commitments, and (ii) the aggregate unpaid 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 would shall not exceed the Swing Line such Lender's Commitment, and (iii) provided, further, that the Aggregate Revolving Tranche Exposure Borrower shall not use the proceeds of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the any Swing Line Commitment PeriodLoan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.05, and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan2.04. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the Interest Period applicable thereto, the date on which the Swing Line Commitment a Base Rate Loan or shall have been voluntarily terminated by bear interest at a rate agreed to between the Borrower in accordance with Section 2.6, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice prior to funding such Loan. Immediately upon the Lenders having making of a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice Loan, each Lender shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h) or (i))to, in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowingand hereby irrevocably and unconditionally agrees to, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to purchase from the Swing Line Lender to repay a risk participation in such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees Loan in an amount equal to make a Revolving Tranche 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) product of such Lender's Applicable Percentage times the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeSwing Line Loan.
Appears in 1 contract
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees to make swing line consider in its sole and absolute discretion making loans (each such loan, a "“Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 Pro Rata Share 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, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would Total Outstandings shall not exceed the Swing Line Lender's Revolving Tranche CommitmentAggregate Commitments, and (ii) the aggregate unpaid balance Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans would shall not exceed the Swing Line such Lender’s Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 is a discretionary, uncommitted facility and Swing Line Lender will not make may terminate or suspend the Swing Line at any time in its sole discretion upon notice to Borrower which notice may be given by Swing Line Lender before or after Borrower requests 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loanhereunder. Each Swing Line Loan shall be due and payable on a BBA LIBOR Daily Floating Rate Loan. Immediately upon the day being the earliest making of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan Loan, each Lender shall remain unpaidbe deemed to, the and hereby irrevocably and unconditionally agrees to, purchase from Swing Line Lender may, a risk participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing in an amount equal to the product of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) ’s Pro Rata Share times the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeSwing Line Loan.
Appears in 1 contract
Samples: Credit Agreement (Mestek Inc)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementset forth herein, during the period from the Effective Date to the Maturity Date, Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") Loans to the Borrower in Dollars as the Borrower may from time ---------------- to time during request for the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitmentpurposes permitted hereby; provided, provided however, that immediately after making each Swing Line Loan, (i) the aggregate amount of Swing Line Lender's Credit Exposure would Loans outstanding shall not exceed the Swing Line Lender's Revolving Tranche CommitmentSublimit, (ii) Swing Line Lender's pro rata share of the aggregate unpaid balance amount of Revolving Loans outstanding plus the aggregate amount of Swing Line Loans would outstanding shall not exceed such Lender's Commitment Percentage of the Swing Line Commitmentamount of the Revolving Loan Commitment minus the Letter of Credit Obligations, and (iii) the Aggregate Revolving Tranche Exposure sum of all Lenders would Loans outstanding shall not exceed the Aggregate amount of the Revolving Tranche CommitmentsLoan Commitment minus the Letter of Credit Obligations. During This is a revolving credit and, subject to the Swing Line Commitment Periodforegoing and the other terms and conditions hereof, the Borrower may borrow, prepay in whole or in part and reborrow under Swing Line Loans as set forth herein without premium or penalty; provided, however, that Swing Line Lender may terminate or suspend the Swing Line Commitment, all at any time in accordance with its sole discretion upon notice to the terms and conditions of this AgreementBorrower. Each Swing Line Loan shall mature bear interest at a rate equal to the rate applicable to Base Rate Loans or at a rate quoted by the Agent and be due and payable on agreed to by the last day of the Interest Period thereforBorrower.
(b) The Unless notified to the contrary by Swing Line Lender shall not be obligated to make any Lender, the Borrower may irrevocably request a 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 upon notice to it and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such . There is no minimum borrowing amount for a Swing Line Loan. The Swing Line Lender will not make Each such request for a Swing Line Loan if the Administrative Agent, or any Lender shall constitute a representation and warranty by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and 5.2 are satisfied. Promptly after receipt of such conditions remain unsatisfied as request, Swing Line Lender shall obtain <PAGE> telephonic verification from the Agent that such Swing Line Loan is permitted hereunder. Upon receiving such verification, Swing Line Lender shall make such Swing Line Loan available to the Borrower. Without the consent of the requested time Required Lenders and 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 Swing Line Lender a risk participation therein in an amount equal to that Lender's Commitment Percentage times the amount of the making such Swing Line Loan. .
(c) Each Swing Line Loan shall be due and bear interest at a fluctuating rate per annum equal to the rate of interest payable on Base Rate Loans or at the day being rate quoted by the earliest Agent and agreed to by the Borrower and interest shall be payable upon demand of Swing Line Lender, on the last day of each month and on the Interest Period applicable thereto, the date on which the Revolving Termination Date. Swing Line Commitment Lender shall have been voluntarily terminated by be responsible for invoicing the Borrower in accordance with Section 2.6, and (or notifying the date Agent to so invoice the Borrower) for such interest. The interest payable on which the Swing Line Loans shall become due and payable pursuant to is solely for the provisions hereofaccount of Swing Line Lender, whether by acceleration or otherwiseexcept following any funding of a risk participation under clause (f) below.
(cd) On any Business Day on which a The Borrower shall repay each Swing Line Loan shall remain unpaid, on the earliest of (i) upon demand made by Swing Line Lender may, in its sole discretion, give notice to and (ii) the Lenders having a Revolving Tranche Commitment and Termination Date. The Borrower shall repay the Borrower that such outstanding principal amount of each Swing Line Loan shall by payment directly to Swing Line Lender or by Swing Line Lender debiting the Borrower's deposit account at Swing Line Lender not later than 10:00 a.m. (Milwaukee, Wisconsin time) for payments hereunder. If the conditions precedent set forth in Section 5.2 can be funded with satisfied, the Borrower may request a borrowing of Revolving Tranche Loans (provided that Loan to repay Swing Line Lender, or, failing to make such notice request, the Borrower shall be deemed to have been automatically given upon requested a Revolving Loan of Base Rate Loans on such payment date pursuant to subsection (f) below. Swing Line Lender shall promptly notify the Agent of each Swing Line Loan and each payment thereof.
(e) If the Borrower fails to timely make any principal or interest payment on any Swing Line Loan, Swing Line Lender shall notify the Agent 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 a Default or an Event of Default under Sections 9.1(h) or (i)), in which case a borrowing any other occurrence or event. Any such payment shall not relieve or otherwise impair the obligation of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect the Borrower to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to repay the Swing Line Lender to 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 Borrower is obligated to, but fails to, repay such outstanding a Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche Loan , the funding by Lenders pursuant to each Mandatory Borrowing 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 the amount and in the manner specified in the preceding sentence and Section 5.2 cannot be satisfied on the date specified 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 writing by such Swing Line Loan, and each Lender making such funding shall thereupon acquire a pro rata <PAGE> participation, to the extent of its payment, in the claim of Swing Line Lender notwithstanding: (i) against the amount Borrower in respect of such Mandatory Borrowing may not comply payment and shall share, in accordance with that pro rata participation, in any payment made by the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether Borrower with respect to such claim. Any amounts made available by a Default or an Event of Default then exists, (iv) Lender under its risk participation shall be payable by the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount Borrower upon demand of the Commitments Agent, and shall bear interest at such timea rate per annum equal to the Base Rate plus 2% per annum.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's ’s risk with respect to such defaulting Defaulting Lender's ’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 Section 6 5 and/or Section 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaid, 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 may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Credit Agreement (CVS Caremark Corp)
Swing Line Loans. (a) Subject Swing Line Lender hereby agrees, subject to the terms limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and conditions Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $5,000,000; provided that any reduction of the Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Swing Line Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on February 28, 1997 if the AXELs are not made on or before that date. Amounts borrowed under this Agreementsubsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitations that (i) in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect and (ii) no Swing Line Loans shall be made on the Closing Date. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender agrees may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 10:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice requesting Lenders to make swing line loans (each a "Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loan" and, --------------- collectively, Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay (which request shall be deemed to have also been made by Borrower). Anything contained in this Agreement to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loancontrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Credit Exposure would not exceed Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance and such portion of the Swing Line Loans would not exceed the deemed to be so paid shall no longer be outstanding as Swing Line Commitment, Loans and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow shall no longer be due under the Swing Line Commitment, all in accordance with the terms and conditions Note of this Agreement. Each Swing Line Loan Lender but shall mature instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Borrower hereby authorizes Administrative Agent and payable on Swing Line Lender to charge Borrower's accounts with Administrative Agent and Swing Line Lender (up to the last day amount available in each such account) one Business Day after requesting Borrower to repay the Refunded Swing Line Loans in order to pay Swing Line Lender the amount of the Interest Period therefor.
Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by 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 Swing Line Lender should be recovered by or on behalf of Borrower from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by subsection 10.5. If for any reason (a) Revolving Loans are not made upon the request of Swing Line Lender as provided in the immediately preceding paragraph in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans or (b) The Swing Line Lender shall not be obligated to make any Swing Line the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it deemed to, and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's hereby agrees to, have purchased a 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be funded entitled to recover such amount on demand from such Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a borrowing payment of any amount in which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Tranche Loans (provided that such notice for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be deemed to 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 been automatically given upon against Swing Line Lender, Borrower or any other Person for any reason whatsoever; (b) the occurrence or continuation of a Default or an Event of Default under Sections 9.1(hor a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Borrower or any of its Subsidiaries; (i))d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, in which case a borrowing happening or event whatsoever, whether or not similar to any of Revolving Tranche Loans made as ABR Advances (each the foregoing; provided that such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds obligations of each Mandatory Borrowing shall be remitted directly Lender are subject to the condition that (1) Swing Line Lender believed in good faith that all conditions under Section 4 to repay such outstanding the making of the applicable Refunded Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 Loans or other unpaid Swing Line Lender notwithstanding: Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (i2) the amount satisfaction of any such Mandatory Borrowing may condition not comply satisfied had been waived in accordance with subsection 10.6 prior to or at the minimum amount for time such Refunded Swing Line 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 other unpaid Swing Line Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timewere made.
Appears in 1 contract
Samples: Credit Agreement (Rose Hills Co)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender agrees to make swing line loans under this Agreement (each a "“Swing Line Loan" ” and, --------------- collectively, the "“Swing Line Loans"”) to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Period. Swing Line Commitment, provided that immediately after making each Swing Line Loan, Loans (i) may be repaid and reborrowed in accordance with the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentprovisions hereof, (ii) shall not, immediately after giving effect thereto, result in the aggregate unpaid balance of Aggregate Credit Exposure exceeding the Swing Line Loans would not exceed the Swing Line CommitmentAggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the Aggregate Revolving Tranche Exposure aggregate outstanding principal balance of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under Loans exceeding the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's ’s risk with respect to such defaulting Defaulting Lender's ’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 Section 6 have not been satisfied or waived 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a . Each Swing Line Loan shall remain unpaidbear 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 having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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 Section 9.1(h), (i) or (ij)), in which case a borrowing of Revolving Tranche Credit Loans made as ABR Advances (each such borrowing, a "“Mandatory Borrowing"), -------------------- ”) shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's ’s Commitment Percentage with respect to its Revolving Tranche Commitment 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 may not comply 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 Revolving Tranche 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 2.2 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 2.2 (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 2.2, the Administrative Agent will promptly remit such payment to such Lender.
Appears in 1 contract
Samples: Credit Agreement (CVS HEALTH Corp)
Swing Line Loans. (a) THE SWING LINE. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees to make swing line loans (each such loan, a "Swing Line Loan" and, --------------- collectively, the "Swing Line LoansSWING LINE LOAN") to the Borrower in Dollars from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 Revolving Credit Commitment Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender's Revolving Credit Commitment; PROVIDED, provided HOWEVER, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Revolving Credit Exposure would Outstandings shall not exceed the Swing Line Lender's Revolving Tranche CommitmentBorrowing Limit, and (ii) the aggregate unpaid balance Outstanding Amount of the Revolving Credit Loans of any Lender, PLUS such Lender's Revolving Credit Commitment Percentage of the Outstanding Amount of all L/C Obligations, PLUS such Lender's Revolving Credit Commitment Percentage of the Outstanding Amount of all Swing Line Loans would shall not exceed the Swing Line such Lender's Revolving Credit Commitment, and (iii) PROVIDED, FURTHER, that the Aggregate Revolving Tranche Exposure Borrower shall not use the proceeds of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the any Swing Line Commitment PeriodLoan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrowborrow under this SECTION 2.05, prepay in whole or in part under SECTION 2.06, and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such LoanSECTION 2.05. Each Swing Line Loan shall be due and payable on a Base Rate Loan. Immediately upon the day being the earliest making of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan Loan, each Lender shall remain unpaidbe deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender may, a risk participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing in an amount equal to the product of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Revolving Credit Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) TIMES the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeSwing Line Loan.
Appears in 1 contract
Swing Line Loans. (ai) Subject As it is understood that the purpose for the Swing Line Loan is to the terms and conditions of this Agreementfund AGCO's operating account, the Swing Line Lender agrees Loans and repayments to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount Bank may be made on a sweep basis, requiring no formal notification from AGCO. The Swing Line Bank may at its discretion, upon three (3) Business Days' written notice to AGCO, choose to require written notification of Swing Line Loans from AGCO, but is not required to do so. At any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Bank makes a Swing Line Loan, each Multicurrency Revolving Tranche Loan Lender (i) other than the Swing Line Lender's Credit Exposure would not exceed Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Lender's Revolving Tranche Commitment, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay Bank an unfunded participation in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each any such Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) The Swing Line Lender shall not be obligated in an amount equal to make any Swing Line such Multicurrency Revolving Tranche 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower Pro Rata Share (calculated in accordance with Section 2.62.11(e)(iv) if any Lender is a Defaulting Lender) of such Swing Line Loan and shall be obligated to fund such participation as a Multicurrency Revolving Tranche Loan at such time and in the manner provided below. Each such Multicurrency Revolving Tranche Loan Lender's obligation to participate in, purchase and the date on fund such participating interests shall be absolute, irrevocable and unconditional and shall not be affected by any circumstance, including, without limitation, (1) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration Bank or otherwise.
any other Person for any reason whatsoever; (c2) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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(hor the termination of the Multicurrency Revolving Tranche Loan Commitments; (3) any adverse change in the condition (financial or otherwise) of AGCO or any other Person; (4) any breach of this Agreement by any Borrower or any other Lender; or (i))5) any other circumstance, in which case a borrowing happening or event whatsoever, whether or not similar to any of the foregoing. Each Borrower hereby consents to each such sale and assignment. Each Multicurrency Revolving Tranche Loans made as ABR Advances Loan Lender agrees to fund its Pro Rata Share (each such borrowing, calculated in accordance with Section 2.11(e)(iv) if any Lender is a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based Defaulting Lender) of an outstanding Swing Line Loan on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on (x) the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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 which demand therefor is made by the Swing Line Lender notwithstanding: Bank, provided that such demand is made not later than 11:00 a.m. (iNew York City time) on such Business Day, or (y) the amount first Business Day next succeeding such demand if such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Multicurrency Revolving Tranche Loan Lender of a participation in a Swing Line Loan, the Swing Line Bank represents and warrants to such other Multicurrency Revolving Tranche Loan Lender that it is the legal and beneficial owner of such Mandatory Borrowing may not comply with the minimum amount for Loans otherwise required hereunderinterest being assigned by it, but makes no other
(ii) whether Unless the Swing Line Bank is the Administrative Agent, the Swing Line Bank shall provide to the Administrative Agent, on Friday of each week and on each date the Administrative Agent notifies the Swing Line Bank that any condition specified Borrower has made a borrowing request or the Administrative Agent otherwise requests the same, an accounting for the outstanding Swing Line Loans in Section 6 is then unsatisfiedform reasonably satisfactory to the Administrative Agent. At any time that the aggregate Unused Multicurrency Revolving Tranche Loan Commitments are less than US$25,000,000, the Swing Line Sublimit shall be reduced temporarily to such lesser amount; and (iii) whether Unless a Default or an Event of Default then exists, the Swing Line Bank shall give AGCO and the Administrative Agent at least seven (iv7) days' prior written notice before exercising its discretion herein not to make Swing Line Loans. AGCO must give ten (10) days' prior written notice to the Borrowing Date Administrative Agent and the then existing Swing Line Bank of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount any change in designation of the Commitments at Swing Line Bank. The replaced Swing Line Bank shall continue to be a "Swing Line Bank" for purposes of repayment of any Swing Line Loans made prior to such timereplacement and outstanding after such replacement.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
Swing Line Loans. (a) Subject In addition to the terms and conditions other options available to Borrower hereunder, up to $10,000,000 of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving Tranche Commitmentcommitment, (ii) the aggregate unpaid balance of the shall be available for Swing Line Loans would not exceed subject to the following terms and conditions. Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all Loans shall be made available for same day borrowings provided that notice is given in accordance with the terms and conditions of this AgreementSECTION 2.9 hereof. Each All Swing Line Loan Loans shall mature and be due and payable on bear interest at the last day of the Interest Period therefor.
(b) The Swing Line Lender CBR Rate. In no event 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 be required 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 fund a Swing Line Loan if it would increase the total aggregate outstanding Loans by Swing Line Lender hereunder plus its Percentage of Facility Letter of Credit Obligations to an amount in excess of its Commitment. Upon request of the Swing Line Lender, each Lender irrevocably agrees to purchase its Percentage of any Swing Line Loan made by the Swing Line Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of an Event of Default hereunder provided no Lender shall be required to have total outstanding Loans plus its Percentage of Facility Letters of Credit to be in an amount greater than its Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Loan made by the purchasing Lender and not by the selling Lender for all purposes under this agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative Agent, or any Lender by notice to Agent for the benefit of the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect all such amounts accruing on or attributable to such Swing Line Loan, shall have determined that Loans for the conditions set forth in Section 6 have not been satisfied period from and after the date of such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan purchase shall be paid when due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which Administrative Agent for the benefit of the purchasing Lender. If prior to purchasing its Percentage in a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount one of the Commitments at such time.events described in SECTION
Appears in 1 contract
Samples: Unsecured Revolving Credit Agreement (Centerpoint Properties Trust)
Swing Line Loans. (a) Subject to the terms and conditions of this Agreementhereof, the Swing Line Lender US Agent agrees to make swing line loans to US Borrower (each a herein called "US Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars upon US Borrower's request from time ---------------- to time during the Swing Line US Facility Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line CommitmentPeriod, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would not US Facility Usage shall never exceed the Swing Line Lender's Revolving Tranche CommitmentUS Maximum Credit Amount, and (ii) the aggregate unpaid balance amount of US Swing Loans outstanding shall never exceed the US Swing Sublimit. The aggregate amount of all US Swing Loans in any Borrowing must be an integral multiple of US $100,000 which equals or exceeds US $1,000,000 or must equal the unadvanced portion of the Swing Line Loans would not exceed US Maximum Credit Amount. The obligation of US Borrower to repay to US Agent the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure aggregate amount of all Lenders would not exceed US Swing Loans made by US Agent, together with interest accruing in connection therewith, shall be evidenced by a single promissory note (herein called the Aggregate Revolving Tranche Commitments"US Swing Note") made by US Borrower payable to the order of US Agent in the form of Exhibit A-3 with appropriate insertions. During The amount of principal owing on the US Swing Line Commitment Period, Note at any given time shall be the Borrower may borrow, prepay in whole or in part and reborrow under aggregate amount of all US Swing Loans theretofore made by US Agent minus all payments of principal theretofore received by US Agent on the US Swing Line Commitment, all in accordance with Note (including as a result of any refinancing pursuant to Section 1.8). Interest on the terms and conditions of this Agreement. Each US Swing Line Loan Note shall mature accrue and be due and payable on the last day of the Interest Period therefor.
(b) 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 as provided herein and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loantherein. The US 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan Note shall be due and payable on the day being the earliest of the last day of the Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6as provided herein and therein, and the date on which the Swing Line Loans shall become be due and payable pursuant in full on the Tranche A Maturity Date. Subject to the provisions terms and conditions hereof, whether by acceleration or otherwiseUS Borrower may borrow, repay, and reborrow US Swing Loans under the US Agreement during the US Facility Commitment Period.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Samples: Credit Agreement (Devon Energy Corp)
Swing Line Loans. (ai) Subject to the terms and conditions set forth herein, each Swing Line Lender agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this AgreementSection 2.04, to make loans in Dollars (each such loan, a “Swing Line Loan”) to the Borrowers from time to time on any Business Day during the Availability Period with respect to the Facility in an aggregate amount not to exceed at any time outstanding the amount of its pro rata share of the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" andSublimit, --------------- collectively, notwithstanding the "fact that such Swing Line Loans") to , when aggregated with the Borrower in Dollars from time ---------------- to time during Applicable Percentage of the Outstanding Amount of Committed Loans of the Revolving Credit Lenders acting as Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to Lenders, may exceed the Swing Line amount of such Revolving Credit Lender’s Revolving Credit Commitment, ; provided that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Total Revolving Credit Exposure would Outstandings shall not exceed the Swing Line Lender's Aggregate Revolving Tranche Commitment, Credit Commitment and (ii) the aggregate unpaid balance Outstanding Amount of the Committed Loans of any Revolving Credit Lender, plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans would plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment; and provided, further, that the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) The Swing Line Lender Borrowers shall not be obligated to make 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. The Swing Line Lender will not make a Swing Line Loan if .
(ii) 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 Business Day prior to the Borrowing Date with respect to such Swing Line LoanBorrowers may borrow under this Section 2.04, shall have determined that the conditions set forth in prepay under Section 6 have not been satisfied 2.05, and such conditions remain unsatisfied as of the requested time of the making such Loan. reborrow under this Section 2.04.
(iii) Each Swing Line Loan shall be due a Base Rate Loan made and payable on maintained in Dollars. Immediately upon the day being the earliest making of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan Loan, each Revolving Credit Lender shall remain unpaidbe deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the relevant Swing Line Lender may, a risk participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed in an amount equal to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving product of such notice. The proceeds Revolving Credit Lender’s Applicable Percentage in respect of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) Facility times the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeSwing Line Loan.
Appears in 1 contract
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees to make swing line consider in its sole and absolute discretion making loans (each such loan, a "“Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"”) to the Borrower in Dollars or in an Optional Currency that is not then available for Committed Borrowings from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 Pro Rata Share 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, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Credit Exposure would Total Outstandings shall not exceed the Swing Line Lender's Revolving Tranche Commitment, Aggregate Commitments and (ii) the aggregate unpaid balance Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment. The Swing Line is a discretionary, uncommitted facility and Administrative Agent may terminate or suspend the Swing Line Loans would not exceed the at any time in its sole discretion upon notice to Borrower which notice may be given by Administrative Agent before or after Borrower requests a Swing Line CommitmentLoan hereunder; provided, further, that Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and (iii) subject to the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodother terms and conditions hereof, the Borrower may borrowborrow under this Section 2.4 above, prepay in whole or in part under Section 2.5 and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this AgreementSection 2.4. Each Swing Line Loan that is denominated in Dollars shall mature be a Base Rate Loan; each Swing Line Loan that is denominated in Optional Currency shall be a Quoted Rate Swing Line Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and be due hereby irrevocably and payable on the last day of the Interest Period therefor.
(b) The unconditionally agrees to, purchase from 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 in an amount equal to the Swing Line Lender and product of such Lender’s Pro Rata Share times the Borrower no later than one Business Day prior to the Borrowing Date with respect to amount of such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the 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 Swing Line Loans shall become due and payable pursuant to be used only for the provisions hereof, whether by acceleration or otherwisepurposes permitted for Committed Loans under the terms of this Agreement.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche 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) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such time.
Appears in 1 contract
Swing Line Loans. (a) Subject to the terms and conditions of set forth in this Agreement, the Swing Line Lender Bank agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") Loans to the Borrower until the Termination Date in Dollars such amounts as the Borrower may from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitmentrequest; provided, provided however, that immediately after making each Swing Line Loan, (i) the aggregate principal amount of all Swing Line Lender's Credit Exposure would Loans shall not exceed the Swing Line Lender's Revolving Tranche CommitmentSublimit, (ii) the aggregate unpaid balance Outstanding Obligations of the Swing Line Loans would each Bank shall not exceed the Swing Line Commitment, such Bank's Commitment and (iii) the Aggregate Revolving Tranche Exposure Outstanding Obligations of all Lenders would Banks shall not exceed the Aggregate Revolving Tranche Commitmentscombined Commitments at any time. During This is a revolving credit and, subject to the Swing Line Commitment Periodforegoing and the other terms and conditions hereof, the Borrower may borrow, prepay in whole or in part and reborrow under Swing Line Loans as set forth herein without premium or penalty; provided, however, that Swing Line Bank may terminate or suspend the Swing Line Commitment, all at any time in accordance with its sole discretion upon notice to the terms and conditions of this AgreementBorrower. Each Swing Line Loan shall mature bear interest at a rate equal to the rate applicable to Base Rate Loans and shall be due and payable on the last day of the Interest Period thereforin Dollars.
(b) The Unless notified to the contrary by 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 Bank, 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 may irrevocably request a Swing Line Loan if in the Administrative Agent, or any Lender by Minimum Tranche therefor upon notice to the Swing Line Lender Bank not later than 8:30 a.m. (San Francisco time) therefor. Each such request for a Swing Line Loan shall constitute a representation and warranty by the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 5.2 are satisfied. Promptly after receipt of such request, the Swing Line Bank shall obtain telephonic verification from Administrative Agent that such Swing Line Loan is permitted hereunder. Upon receiving such verification, the Swing Line Bank shall make such Swing Line Loan available to the Borrower. Without the consent of Required Banks and the Swing Line Bank, 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 Bank shall be deemed to have not been satisfied and such conditions remain unsatisfied as purchased from the Swing Line Bank a risk participation therein in an amount equal to that Bank's Pro Rata Share times the amount of the requested time of the making such Swing Line Loan. .
(c) Each Swing Line Loan shall be due and 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 day being Swing Line Bank and on the Termination Date. The Swing Line Bank shall be responsible for invoicing the Borrower (or notifying Administrative Agent to so invoice the Borrower) for such interest. The interest payable on Swing Line Loans is solely for the account of the Swing Line Bank, except following any funding of a risk participation under clause (f) below.
(d) The Borrower shall repay each Swing Line Loan on the earliest of (i) the last day of the Interest Period applicable theretofifth Business Day after it is made, the date on which the (ii) upon demand made by Swing Line Commitment Bank and (iii) the Termination Date. The Borrower shall have been voluntarily terminated by repay the Borrower in accordance with Section 2.6, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a principal amount of each Swing Line Loan shall remain unpaidby payment directly to Swing Line Bank or by Swing Line Bank debiting the Borrower's deposit account at Swing Line Bank not later than 8:00 a.m. San Francisco time for payments hereunder. If the conditions precedent set forth in Section 5.2 can be satisfied, the Borrower may request a Borrowing of Committed Loans to repay Swing Line Lender mayBank pursuant to Section 2.1, in its sole discretionor, give notice failing to the Lenders having a Revolving Tranche Commitment and make such request, the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed to have been automatically given upon 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 Borrower fails to timely make any principal of or interest payment on any Swing Line Loan, Swing Line Bank shall notify the Administrative Agent of such fact and the unpaid amount. The Administrative Agent shall promptly notify each Bank of its Pro Rata Share of such amount by 8:30 a.m. (San Francisco time). Each Bank shall make funds in an amount equal to its Pro Rata Share of such amount 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 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 a Default or an Event of Default under Sections 9.1(hor any other occurrence or event. Any such payment shall not relieve or otherwise impair the obligation of the Borrower to repay the Swing Line Bank for any amount of Swing Line Loans, together with interest as provided herein.
(f) or If the conditions precedent set forth in Section 5.2 can be satisfied on any date the Borrower 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 (i))without regard to the minimum amount therefor) deemed requested by the Borrower. If the conditions precedent set forth in Section 5.2 cannot be satisfied on the date the Borrower is obligated to make, but fails to make, such payment, the funding by Banks pursuant to the previous subsection shall be deemed to be a funding by each Bank of its participation in such Swing Line Loan, and each Bank making such funding shall thereupon acquire a pro rata participation, to the extent of its payment, in which case a borrowing the claim of Revolving Tranche Loans made as ABR Advances (each Swing Line Bank against the Borrower in respect of such borrowingpayment and shall share, a "Mandatory Borrowing")in accordance with that pro rata participation, -------------------- shall be in any payment made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage the Borrower with respect to such claim. Any amounts made available by a Bank under its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing risk participation shall be remitted directly payable by the Borrower upon demand of Administrative Agent, and shall bear interest at a rate per annum equal to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche Loan pursuant to each Mandatory Borrowing in Base Rate plus 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) the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeApplicable Margin plus 2% per annum.
Appears in 1 contract
Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions of this Agreementset forth herein, the Swing Line Lender agrees to may, but shall not be obligated to, make swing line loans in reliance upon the agreements of the other Lenders set forth in this Section 2.04 in Dollars (each such loan, a "“Swing Line Loan" and, --------------- collectively, the "Swing Line Loans"”) to the Borrower in Dollars Borrowers from time ---------------- to time on any Business Day during the Swing Line Commitment Availability Period in an aggregate principal amount at any one time outstanding 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 Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and Letter of Credit Obligations of the Revolving Credit Lender acting as Swing Line Lender, may exceed the amount of such Revolving Credit Lender’s Revolving Credit Commitment; provided, provided however, that immediately after making each giving effect to any Swing Line Loan, (i) the Swing Line Lender's Total Revolving Credit Exposure would Outstandings shall not exceed the Swing Line Lender's Revolving Tranche CommitmentMaximum Borrowing Amount, and (ii) the aggregate unpaid balance Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, and provided, further, that the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits and subject to the discretion of the Swing Line Loans would not exceed the Lender to make Swing Line CommitmentLoans, and (iii) subject to the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Periodother terms and conditions hereof, the Borrower Borrowers may borrowborrow under this Section 2.04, prepay in whole or in part under Section 2.06(a)(ii), and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan2.04. Each Swing Line Loan shall be due and payable on a Base Rate Revolving Credit Loan. Immediately upon the day being the earliest making of the last day of the 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 Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan Loan, each Revolving Credit Lender shall remain unpaidbe deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender may, a risk participation in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed in an amount equal to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving product 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 having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) Credit Lender’s Applicable Percentage times the amount of such Mandatory Borrowing may not comply 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 Revolving Tranche Exposure at such time and (vii) the amount of the Commitments at such timeSwing Line Loan.
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Swing Line Loans. (a) Subject Upon the satisfaction of the conditions precedent set forth in Section 4.2 and, if such US Swing Line Loan is to be made on the date of the initial Advance hereunder, the satisfaction of the conditions precedent set forth in Section 4.1 as well, from and including the date of this Agreement and prior to the Facility Termination Date, the US Swing Line Lender agrees, on the terms and conditions of set forth in this Agreement, the to make US Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower Loans in Dollars to any Borrower from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the US Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Aggregate Outstanding Credit Exposure would shall not at any time exceed the Swing Line Lender's Revolving Tranche Aggregate Commitment. Subject to the terms of this Agreement, (ii) the aggregate unpaid balance of the Borrowers may borrow, repay and reborrow US Swing Line Loans would not exceed at any time prior to the Swing Line Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitments. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period thereforFacility Termination Date.
(b) The applicable Borrower shall deliver to the Agent and the US Swing Line Lender irrevocable notice (a “US Swing Line Borrowing Notice”) not later than noon (Chicago time) on the Borrowing Date of each US Swing Line Loan specifying (a) the applicable Borrowing Date (which date shall be a Business Day), (b) the aggregate amount of the requested US Swing Line Loan which shall be an amount not less than $1,000,000 and in integral multiples of $100,000 in excess thereof and (c) whether such US Swing Line Loan shall bear interest at the Floating Rate or at the rate offered by the US Swing Line Lender, upon request by the applicable Borrower, for US Swing Line Loans (the “Offered Rate”).
(c) Promptly after receipt of a US Swing Line Borrowing Notice, the Agent shall notify the US Swing Line Lender by fax, or other similar form of transmission, of the requested US Swing Line Loan. Not later than 2:00 p.m. (Chicago time) on the applicable Borrowing Date, the US 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 available 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 Business Day prior to the Borrowing Date with respect to such US Swing Line Loan, shall have determined that in funds immediately available in Chicago, to the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as Agent at its address specified pursuant to Article XIII. The Agent will promptly make the funds so received from the US Swing Line Lender available to the applicable Borrower on the Borrowing Date at the Agent’s aforesaid address.
(d) Repayment of the requested time of the making such Loan. US Swing Line Loans:
(i) Each US Swing Line Loan shall be due and payable paid in full by the applicable Borrower on or before the seventh (7th) day after the Borrowing Date for such US Swing Line Loan. In addition, US Swing Line Lender (i) may at any time in its sole discretion with respect to any outstanding US Swing Line Loan, or (ii) shall on the seventh (7th) day being after the earliest Borrowing Date of any US Swing Line Loan, require each Lender (including the last day US Swing Line Lender) to make a Revolving Loan in the amount of such Lender’s Pro Rata Share of such US Swing Line Loan (including, without limitation, any interest accrued and unpaid thereon), for the Interest Period applicable thereto, purpose of repaying such US Swing Line Loan. Not later than noon (Chicago time) on the date on which of any notice received pursuant to this Section 2.5.2(d), each Lender shall make available its required Revolving Loan, in funds immediately available in Chicago to the Agent at its address specified pursuant to Article XIII. Revolving Loans made pursuant to this Section 2.5.2(d) shall initially be Floating Rate Loans and thereafter may be continued as Floating Rate Loans or converted into Eurodollar Loans in the manner provided in Section 2.10 and subject to the other conditions and limitations set forth in this Article II. Unless a Lender shall have notified the US Swing Line Commitment shall have Lender, prior to its making any US Swing Line Loan, that any applicable condition precedent set forth in Sections 4.1 or 4.2 had not then been voluntarily terminated by the Borrower in accordance with satisfied, such Lender’s obligation to make Revolving Loans pursuant to this Section 2.6, and the date on which the 2.5.2(d) to repay Swing Line Loans shall become due be unconditional, continuing, irrevocable and payable pursuant to absolute and shall not be affected by any circumstances, including, without limitation, (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaidAgent, the US Swing Line Lender mayor any other Person, in its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed to have been automatically given upon b) the occurrence or continuance of a Default or an Event Unmatured Default, (c) any adverse change in the condition (financial or otherwise) of Default under Sections 9.1(h) the Parent or the applicable Borrower, or (i)d) any other circumstances, happening or event whatsoever. In the event that any Lender fails to make payment to the Agent of any amount due under this Section 2.5.2(d), in which case a borrowing the Agent shall be entitled to receive, retain and apply against such obligation the principal and interest otherwise payable to such Lender hereunder until the 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 Agent of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"any amount due under this Section 2.5.2(d), -------------------- such Lender shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each deemed, at the option of the Agent, to have unconditionally and irrevocably purchased from such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the US Swing Line Lender to repay such outstanding Lender, without recourse or warranty, an undivided interest and participation in the applicable US Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing Revolving Loan, and such interest and participation may not comply be recovered from such Lender together with interest thereon at the minimum Federal Funds Effective Rate for each day during the period commencing on the date of demand and ending on the date such amount for Loans otherwise required hereunder, is received.
(ii) whether any condition specified in Section 6 is then unsatisfiedAll US Swing Line Loans shall mature, (iii) whether a Default or an Event of Default then exists, (iv) and the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all thereof and the unpaid accrued interest thereon shall be due and payable as set forth above in (i) above and on the Facility Termination Date. Interest accrued on US Swing Line Loans then outstandingshall be payable on each Payment Date and on any date on which such US Swing Line Loans are prepaid, (vi) the Aggregate Revolving Tranche Exposure whether due to acceleration or otherwise, and at such time and (vii) the amount of the Commitments at such timematurity.
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Swing Line Loans. (ai) Subject As it is understood that the purpose for the Swing Line Loan is to the terms and conditions of this Agreementfund AGCO’s operating account, the Swing Line Lender agrees Loans and repayments to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time ---------------- to time during the Swing Line Commitment Period in an aggregate principal amount Bank may be made on a sweep basis, requiring no formal notification from AGCO. The Swing Line Bank may at its discretion, upon three (3) Business Days’ written notice to AGCO, choose to require written notification of Swing Line Loans from AGCO, but is not required to do so. At any one time outstanding not to exceed the Swing Line Commitment, provided that immediately after making each Bank makes a Swing Line Loan, each Lender (i) other than the Swing Line Lender's Credit Exposure would not exceed Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Bank an unfunded participation in any such Swing Line Loan in an amount equal to such Lender's ’s Pro Rata Share (calculated in accordance with Section 2.11(e)(iv) if any Lender is an Impacted Lender) of such Swing Line Loan and shall be obligated to fund such participation as a Revolving Tranche CommitmentLoan at such time and in the manner provided below. Each such Lender’s obligation to participate in, purchase and fund such participating interests shall be absolute, irrevocable and unconditional and shall not be affected by any circumstance, including, without limitation, (ii1) the aggregate unpaid balance of any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swing Line Loans would Bank or any other Person for any reason whatsoever; (2) the occurrence or continuance of a Default or an Event of Default or the termination of the Revolving Loan Commitments; (3) any adverse change in the condition (financial or otherwise) of AGCO or any other Person; (4) any breach of this Agreement by any Borrower or any other Lender; or (5) any other circumstance, happening or event whatsoever, whether or not exceed similar to any of the foregoing. Each Borrower hereby consents to each such sale and assignment. Each Lender agrees to fund its Pro Rata Share (calculated in accordance with Section 2.11(e)(iv) if any Lender is an Impacted Lender) of an outstanding Swing Line Loan on (x) the Business Day on which demand therefor is made by the Swing Line CommitmentBank, and provided that such demand is made not later than 11:00 a.m. (iiiNew York City time) on such Business Day, or (y) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Aggregate Revolving Tranche Commitmentsfirst Business Day next succeeding such demand if such demand is made after such time. During Upon any such assignment by the Swing Line Commitment PeriodBank to any other Lender of a participation in a Swing Line Loan, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms Bank represents and conditions of this Agreement. Each Swing Line Loan shall mature and be due and payable on the last day of the Interest Period therefor.
(b) 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 warrants to such defaulting Lender's participation in other Lender that it is the legal and beneficial owner of such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agentinterest being assigned by it, but makes no other representation or any Lender by notice to the Swing Line Lender warranty and the Borrower assumes no later than one Business Day prior to the Borrowing Date responsibility with respect to such Swing Line Loan, the Loan Documents or the Borrowers. If and to the extent that any Lender shall not have determined that so made the conditions set forth amount of such participation in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable available to the Administrative Agent, such Lender agrees to pay to the Administrative Agent forthwith on the demand such amount together with interest thereon, for each day being the earliest of the last day of the Interest Period applicable thereto, from the date on which of request by the Swing Line Commitment Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Effective Rate. If such Lender shall have been voluntarily terminated pay to the Administrative Agent such amount for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a U.S. Dollar Revolving Loan made by the Borrower in accordance with Section 2.6such Lender on such Business Day for purposes of this Agreement, and the date on which outstanding principal amount of the Swing Line Loans Loan made by the Swing Line Bank shall become due and payable pursuant to the provisions hereof, whether be reduced by acceleration or otherwisesuch amount on such Business Day.
(cii) On any Business Day on which a Unless the Swing Line Loan shall remain unpaidBank is the Administrative Agent, the Swing Line Lender may, in its sole discretion, give notice Bank shall provide to the Lenders having Administrative Agent, on Friday of each week and on each date the Administrative Agent notifies the Swing Line Bank that any Borrower has made a Revolving Tranche Commitment and borrowing request or the Borrower that such Administrative Agent otherwise requests the same, an accounting for the outstanding Swing Line Loans in form reasonably satisfactory to the Administrative Agent. At any time that the Unused Revolving Loan shall be funded with a borrowing of Revolving Tranche 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) or (i))Commitment is less than U.S. $25,000,000, in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the Business Day immediately succeeding the giving of such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender Sublimit shall be reduced temporarily to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche 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) the amount of such Mandatory Borrowing may not comply with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, lesser amount; and
(iii) whether Unless a Default or an Event of Default then exists, the Swing Line Bank shall give AGCO and the Administrative Agent at least seven (iv7) days’ prior written notice before exercising its discretion herein not to make Swing Line Loans. AGCO must give ten (10) days’ prior written notice to the Borrowing Date Administrative Agent of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Revolving Tranche Exposure at such time and (vii) the amount any change in designation of the Commitments at Swing Line Bank. The replaced Swing Line Bank shall continue to be a “Swing Line Bank” for purposes of repayment of any Swing Line Loans made prior to such timereplacement and outstanding after such replacement.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
