Swing Loan Commitments. (a) Subject to the terms and conditions set forth in this Agreement, Swing Loan Lender agrees to lend to Borrower (the “Swing Loans”), and Borrower may borrow (and repay and reborrow) from time to time between the Closing Date and the date which is thirty (30) Banking Days prior to the Maturity Date upon notice by Borrower to the Swing Loan Lender given in accordance with this Section 2.5 such sums as are requested by Borrower for the purposes set forth in Section 5.9 that do not result in (i) an aggregate principal amount of Swing Loans at any one time outstanding (after giving effect to all amounts requested thereunder) being in excess of the Swing Loan Commitment, or (ii) the Outstanding Line Amount (after giving effect to all Swing Loans requested thereunder) shall not exceed the Aggregate Line Commitment, or (iii) the Outstanding Facility Amount (after giving effect to all amounts requested thereunder) being in excess of the Facility Availability Amount. Swing Loans shall constitute “Line Loans” for all purposes hereunder, but shall not be considered the utilization of a Lender’s Percentage of the Aggregate Line Commitment. The funding of a Swing Loan hereunder shall constitute a representation and warranty by Borrower that all of the conditions set forth in Article 8 have been satisfied on the date of such funding (other than advance notice requirements). (b) The Swing Loans shall be evidenced by a separate promissory note of Borrower in substantially the form of Exhibit F hereto (the “Swing Loan Note”), dated the date of this Agreement and completed with appropriate insertions. The Swing Loan Note shall be payable to the order of the Swing Loan Lender in such amount as may be outstanding from time to time thereunder and shall be payable as set forth below. The Borrower irrevocably authorizes the Swing Loan Lender to make or cause to be made, at or about the time of the date of any Swing Loan or at the time of receipt of any payment of principal thereof, an appropriate notation on the Swing Loan Lender’s record reflecting the making of such Swing Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swing Loans set forth on the Swing Loan Lender’s record shall be prima facie evidence of the principal amount thereof owing and unpaid to the Swing Loan Lender, but the failure to record, or any error in so recording, any such amount on the Swing Loan Lender’s record shall not limit or otherwise affect the obligations of Borrower hereunder or under the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due. (c) Each borrowing of a Swing Loan shall be subject to the limits for Alternate Base Rate Loans set forth in this Agreement. The Borrower shall request a Swing Loan by delivering to the Swing Loan Lender a Request for Loan no later than 2:00 p.m. (Cleveland time) on the requested date specifying the amount of the requested Swing Loan. Each such Request for Loan shall be irrevocable and binding on Borrower and shall obligate Borrower to accept such Swing Loan on the requested date. Notwithstanding anything herein to the contrary, a Swing Loan shall be an Alternate Base Rate Loan that shall bear interest at the Alternate Base Rate. The proceeds of the Swing Loan will be made available by the Swing Loan Lender to Borrower at the Administrative Agent’s Office (on the same Banking Day that the Request for Loan was received, if received prior to the deadline stated above on such day) by crediting the account of Borrower at such office with such proceeds. (d) The Swing Loan Lender shall within five (5) Banking Days after the date a Swing Loan is made, request each Lender, including the Swing Loan Lender, to make a Line Loan pursuant to Section 2.1(a) in an amount equal to such Lender’s Percentage of the amount of the Swing Loan outstanding on the date such notice is given. The Borrower hereby irrevocably authorizes and directs the Swing Loan Lender to so act on its behalf, and agrees that any amount advanced to the Administrative Agent for the benefit of the Swing Loan Lender pursuant to this Section 2.5(d) shall be considered a Line Loan pursuant to Section 2.1(a). Unless any of the events described in Section 9.1(j) shall have occurred (in which event the procedures of Section 2.5(e) shall apply), each Lender shall make the proceeds of its Line Loan available to the Swing Loan Lender for the account of the Swing Loan Lender at the Administrative Agent’s Office prior to 1:00
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Samples: Unsecured Credit Agreement (BioMed Realty L P), Unsecured Credit Agreement (BioMed Realty Trust Inc)
Swing Loan Commitments. (a) Subject to the terms and conditions set forth in this Agreement, Swing Loan Lender agrees to lend to Borrower (the “Swing Loans”), and Borrower may borrow (and repay and reborrow) from time to time between the Closing Date and the date which is thirty (30) Banking Days prior to the Maturity Date upon notice by Borrower to the Swing Loan Lender given in accordance with this Section 2.5 such sums as are requested by Borrower for the purposes set forth in Section 5.9 that do not result in (i) an aggregate principal amount of Swing Loans at any one time outstanding (after giving effect to all amounts requested thereunder) being in excess of the Swing Loan Commitment, or (ii) the Outstanding Line Amount (after giving effect to all Swing Loans requested thereunder) shall not exceed exceeding the Aggregate Line Commitment, or (iii) the Outstanding Facility Amount (after giving effect to all amounts requested thereunder) being in excess of the Facility Availability AmountAggregate Commitment. Swing Loans shall constitute “Line Loans” for all purposes hereunder, but shall not be considered the utilization of a Line Lender’s Line Loan Percentage of the Aggregate Line Commitment. The funding of a Swing Loan hereunder shall constitute a representation and warranty by Borrower that all of the conditions set forth in Article 8 have been satisfied on the date of such funding (other than advance notice requirements).
(b) The Swing Loans shall be evidenced by a separate promissory note of Borrower in substantially the form of Exhibit F hereto (the “Swing Loan Note”), dated the date of this Agreement and completed with appropriate insertions. The Swing Loan Note shall be payable to the order of the Swing Loan Lender in such amount as may be outstanding from time to time thereunder and shall be payable as set forth below. The Borrower irrevocably authorizes the Swing Loan Lender to make or cause to be made, at or about the time of the date of any Swing Loan or at the time of receipt of any payment of principal thereof, an appropriate notation on the Swing Loan Lender’s record reflecting the making of such Swing Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swing Loans set forth on the Swing Loan Lender’s record shall be prima facie evidence of the principal amount thereof owing and unpaid to the Swing Loan Lender, but the failure to record, or any error in so recording, any such amount on the Swing Loan Lender’s record shall not limit or otherwise affect the obligations of Borrower hereunder or under the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due.
(c) Each borrowing of a Swing Loan shall be subject to the limits for Alternate Base Rate Loans set forth in this Agreement. The Borrower shall request a Swing Loan by delivering to the Swing Loan Lender a Request for Loan no later than 2:00 p.m. (Cleveland time) on the requested date specifying the amount of the requested Swing Loan. Each such Request for Loan shall be irrevocable and binding on Borrower and shall obligate Borrower to accept such Swing Loan on the requested date. Notwithstanding anything herein to the contrary, a Swing Loan shall be an Alternate Base Rate Loan that shall bear interest at the Alternate Base One Day LIBOR Rate. The proceeds of the Swing Loan will be made available by the Swing Loan Lender to Borrower at the Administrative Agent’s Office (on the same Banking Day that the Request for Loan was received, if received prior to the deadline stated above on such day) by crediting the account of Borrower at such office with such proceeds.
(d) The Swing Loan Lender shall within five (5) Banking Days after the date a Swing Loan is made, request each Line Lender, including the Swing Loan Lender, to make a Line Loan pursuant to Section 2.1(a) in an amount equal to such Line Lender’s Line Loan Percentage of the amount of the Swing Loan outstanding on the date such notice is given. The Borrower hereby irrevocably authorizes and directs the Swing Loan Lender to so act on its behalf, and agrees that any amount advanced to the Administrative Agent for the benefit of the Swing Loan Lender pursuant to this Section 2.5(d) shall be considered a Line Loan pursuant to Section 2.1(a). Unless any of the events described in Section 9.1(j) shall have occurred (in which event the procedures of Section 2.5(e) shall apply), each Line Lender shall make the proceeds of its Line Loan available to the Swing Loan Lender for the account of the Swing Loan Lender at the Administrative Agent’s Office prior to 1:001:00 p.m. (Cleveland time) in funds immediately available no later than the next Banking Day after the date such notice is given just as if the Line Lenders were funding a Base Rate Loan directly to Borrower, so that thereafter such Obligations shall be evidenced by the Line Notes. The proceeds of such Line Loan shall be immediately applied to repay the Swing Loans.
(e) If prior to the making of a Line Loan pursuant to Section 2.5(d) by all of the Line Lenders, one of the events described in Section 9.1(j) shall have occurred, each Line Lender will, on the date such Line Loan pursuant to Section 2.5(d) was to have been made, purchase an undivided participating interest in the Swing Loan in an amount equal to its Line Loan Percentage of such Swing Loan. Each Line Lender will immediately transfer to the Swing Loan Lender in immediately available funds the amount of its participation and upon receipt thereof the Swing Loan Lender will deliver to such Line Lender a Swing Loan participation certificate dated the date of receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Lender has received from any Line Lender such Line Lender’s participating interest in a Swing Loan, the Swing Loan Lender receives any payment on account thereof, the Swing Loan Lender will distribute to such Line Lender its participating interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Line Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Loan Lender is required to be returned, such Line Lender will return to the Swing Loan Lender any portion thereof previously distributed by the Swing Loan Lender to it.
(g) Each Line Lender’s obligation to fund a Line Loan as provided in Section 2.5(d) or to purchase participating interests pursuant to Section 2.5(e) shall be absolute and unconditional and shall not be affected by any circumstance (except only the failure of the Swing Loan Lender to make the request described in Section 2.5(d)), including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Line Lender or Borrower may have against the Swing Loan Lender, Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of Borrower or any other member of the Consolidated Group; (iv) any breach of this Agreement or any of the other Loan Documents by any Lender; (v) the failure to satisfy all of the conditions to disbursement set forth in Article 8; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. No such funding or purchase by a Line Lender under the preceding sentence shall be deemed to be a waiver of any claim that a Line Lender may otherwise have against the Administrative Agent pursuant to the terms of this Agreement. The provisions of Section 2.9 shall apply to any Line Lender which fails or refuses to make a Line Loan or fund its participation as provided herein. Each Swing Loan, once so converted, shall cease to be a Swing Loan for the purposes of this Agreement, but shall be a Line Loan made by each Line Lender under its Line Commitment.
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Swing Loan Commitments. (a) Subject to the terms and conditions set forth in this Agreement, Swing Loan Lender Bank agrees to lend to Borrower the Borrowers (the “"Swing Loans”"), and Borrower the Borrowers may borrow (and repay and reborrow) from time to time between the Closing Date and the date which is thirty (30) Banking Days prior to the Maturity Date upon notice by Borrower the Borrowers to the Swing Loan Lender Bank given in accordance with this Section 2.5 such sums as are requested by the Borrower for the purposes set forth in Section 5.9 that do not result in (i) an aggregate principal amount of Swing Loans at any one time outstanding being in excess of the Swing Loan Commitment, and (ii) the aggregate principal amount outstanding under the Notes (after giving effect to all amounts requested thereunder) plus the Letter of Credit Exposure being in excess of the Swing Loan Commitment, lesser of (A) the Line Commitment or (iiB) the Outstanding Line Amount (after giving effect to all Swing Loans requested thereunder) shall not exceed the Aggregate Line Commitment, or (iii) the Outstanding Facility Amount (after giving effect to all amounts requested thereunder) being in excess of the Facility Availability AmountBorrowing Base. Swing Loans shall constitute “Line "Loans” " for all purposes hereunder, but shall not be considered the utilization of a Lender’s Percentage Bank's Pro Rata Share of the Aggregate Line CommitmentCommitments. The funding of a Swing Loan hereunder shall constitute a representation and warranty by Borrower the Borrowers that all of the conditions set forth in Article 8 have been satisfied on the date of such funding (other than advance notice requirements).
(b) The Swing Loans shall be evidenced by a separate promissory note of Borrower the Borrowers in substantially the form of Exhibit F hereto (the “"Swing Loan Note”"), dated the date of this Agreement and completed with appropriate insertions. The Swing Loan Note shall be payable to the order of the Swing Loan Lender Bank in such amount as may be outstanding from time to time thereunder and shall be payable as set forth below. The Borrower Borrowers irrevocably authorizes authorize the Swing Loan Lender Bank to make or cause to be made, at or about the time of the date of any Swing Loan or at the time of receipt of any payment of principal thereof, an appropriate notation on the Swing Loan Lender’s Bank's record reflecting the making of such Swing Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swing Loans set forth on the Swing Loan Lender’s Bank's record shall be prima facie evidence of the principal amount thereof owing and unpaid to the Swing Loan LenderBank, but the failure to record, or any error in so recording, any such amount on the Swing Loan Lender’s Bank's record shall not limit or otherwise affect the obligations of Borrower the Borrowers hereunder or under the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due.
(c) Each borrowing of a Swing Loan shall be subject to the limits for Alternate Base Rate Loans set forth in this Agreement. The Borrower Borrowers shall request a Swing Loan by delivering to the Swing Loan Lender Bank a Request for Loan no later than 2:00 p.m. (Cleveland California time) on the requested date specifying the amount of the requested Swing Loan. Each such Request for Loan shall be irrevocable and binding on Borrower the Borrowers and shall obligate Borrower the Borrowers to accept such Swing Loan on the requested date. Notwithstanding anything herein to the contrary, a Swing Loan shall be an Alternate Base Rate Loan that shall bear interest at the Alternate Alternative Base Rate. The proceeds of the Swing Loan will be made available by the Swing Loan Lender Bank to Borrower the Borrowers at the Administrative Agent’s 's Office (on the same Banking Day that the Request for Loan was received, if received prior to the deadline stated above 2:00 p.m. on such day) by crediting the account of Borrower the Borrowers at such office with such proceeds.
(d) The Swing Loan Lender Bank shall within five three (53) Banking Days after the date a Swing Loan is made, request each LenderBank, including the Swing Loan LenderBank, to make a Line Loan pursuant to Section 2.1(a) 2.1 in an amount equal to such Lender’s Percentage Bank's Pro Rata Share of the amount of the Swing Loan outstanding on the date such notice is given. The Borrower Borrowers hereby irrevocably authorizes authorize and directs direct the Swing Loan Lender Bank to so act on its their behalf, and agrees agree that any amount advanced to the Administrative Agent for the benefit of the Swing Loan Lender Bank pursuant to this Section 2.5(d) shall be considered a Line Loan pursuant to Section 2.1(a)2.1. Unless any of the events described in Section 9.1(j) shall have occurred (in which event the procedures of Section 2.5(e) shall apply), each Lender Bank shall make the proceeds of its Line Loan available to the Swing Loan Lender Bank for the account of the Swing Loan Lender Bank at the Administrative Agent’s 's Office prior to 1:002:00 p.m. (California time) in funds immediately available no later than the third (3rd) Banking Day after the date such notice is given just as if the Banks were funding directly to the Borrowers, so that thereafter such Obligations shall be evidenced by the Line Notes. The proceeds of such Line Loan shall be immediately applied to repay the Swing Loans.
(e) If prior to the making of a Line Loan pursuant to Section 2.5(d) by all of the Banks, one of the events described in Section 9.1(j) shall have occurred, each Bank will, on the date such Line Loan pursuant to Section 2.5(d) was to have been made, purchase an undivided participating interest in the Swing Loan in an amount equal to its Pro Rata Share of such Swing Loan. Each Bank will immediately transfer to the Swing Loan Bank in immediately available funds the amount of its participation and upon receipt thereof the Swing Loan Bank will deliver to such Bank a Swing Loan participation certificate dated the date of receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Bank has received from any Bank such Bank's participating interest in a Swing Loan, the Swing Loan Bank receives any payment on account thereof, the Swing Loan Bank will distribute to such Bank its participating interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Bank's participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Loan Bank is required to be returned, such Bank will return to the Swing Loan Bank any portion thereof previously distributed by the Swing Loan Bank to it.
(g) Each Bank's obligation to fund a Line Loan as provided in Section 2.5(d) or to purchase participating interests pursuant to Section 2.5(e) shall be absolute and unconditional and shall not be affected by any circumstance (except only the failure of the Swing Loan Bank to make the request described in Section 2.5(d)), including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Bank or the Borrowers may have against the Swing Loan Bank, the Borrowers or anyone else for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of any of the Borrowers or any of their respective Subsidiaries; (iv) any breach of this Agreement or any of the other Loan Documents by any of the Borrowers or any Bank; (v) the failure to satisfy all of the conditions to disbursement set forth in Article 8; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. The provisions of Section 2.9 shall apply to any Bank which fails or refuses to make a Line Loan or fund its participation as provided herein. Each Swing Loan, once so converted, shall cease to be a Swing Loan for the purposes of this Agreement, but shall be a Line Loan made by each Bank under its Commitment.
Appears in 1 contract
Swing Loan Commitments. (a) Subject to the terms and conditions set forth in this Agreement, and if necessary to meet the Borrower's funding deadlines, Swing Loan Lender Bank agrees to lend to the Borrower (the “"Swing Loans”"), and the Borrower may borrow (and repay and reborrow) from time to time between the Closing Date and the date which is thirty seven (307) Banking Business Days prior to the Maturity Date upon notice by the Borrower to the Swing Loan Lender Bank given in accordance with this Section 2.5 2.5, such sums as are requested by the Borrower for the purposes set forth in Section 5.9 that do not result 2.10 in (i) an aggregate principal amount of Swing Loans at any one time outstanding not exceeding the Swing Loan Commitment; PROVIDED that at no time shall the aggregate principal balance of Swing Loans then outstanding, when added to the Swing Loan Bank's Commitment Percentage of all other Outstanding Loans (after giving effect to all amounts requested thereunderrequested) being in excess and Letters of Credit Outstanding, exceed the Swing Loan Commitment, or lesser of (i) such Bank's Commitment and (ii) such Bank's Commitment Percentage of the Outstanding Line Amount (after giving effect to Borrowing Base, PROVIDED, FURTHER, that in all Swing events no Default or Event of Default shall have occurred and be continuing; and PROVIDED, FURTHER, that the outstanding principal amount of the Loans requested thereunder) shall not exceed the Aggregate Line Commitment, or (iii) the Outstanding Facility Amount (after giving effect to all amounts requested thereunderrequested) being in excess and Letters of Credit Outstanding shall not at any time exceed the Facility Availability AmountTotal Commitment. Swing Loans shall constitute “Line "Loans” " for all purposes hereunder, but shall not be considered the utilization of a Lender’s Percentage of the Aggregate Line Bank's Commitment. The funding of a Swing Loan hereunder shall constitute a representation and warranty by the Borrower that all of the conditions set forth in Article 8 Section 10 and Section 11, in the case of the initial Swing Loan, and Section 11, in the case of all other Swing Loans, have been satisfied on the date of such funding (other than advance notice requirements)funding.
(b) The Swing Loans shall be evidenced by a separate promissory note of the Borrower in substantially the form of Exhibit F EXHIBIT B hereto (the “"Swing Loan Note”"), dated the date of this Agreement and completed with appropriate insertions. The Swing Loan Note shall be payable to the order of the Swing Loan Lender Bank in such the principal face amount as may be outstanding from time equal to time thereunder the Swing Loan Commitment and shall be payable as set forth below. The Borrower irrevocably authorizes the Swing Loan Lender Bank to make or cause to be made, at or about the time of the date Drawdown Date of any Swing Loan or at the time of receipt of any payment of principal thereof, an appropriate notation on the Swing Loan Lender’s record Bank's Record reflecting the making of such Swing Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swing Loans set forth on the Swing Loan Lender’s record Bank's Record shall be prima facie PRIMA FACIE evidence of the principal amount thereof owing and unpaid to the Swing Loan LenderBank, but the failure to record, or any error in so recording, any such amount on the Swing Loan Lender’s record Bank's Record shall not limit or otherwise affect the obligations of the Borrower hereunder or under the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due.
(c) Each borrowing of a Swing Loan shall be subject to the limits for Alternate Base Rate Loans and LIBOR Rate Loans set forth in this AgreementSection 2.7. The Borrower shall request a Swing Loan by delivering to the Swing Loan Lender Bank a Loan Request for Loan no later than 2:00 p.m. 9:00 a.m. (Cleveland Boston time) on the requested date Drawdown Date specifying the amount of the requested Swing Loan. The Loan Request shall also contain the statements and certifications required by Section 2.7(i) and (ii). Each such Loan Request for Loan shall be irrevocable and binding on the Borrower and shall obligate the Borrower to accept such Swing Loan on the requested dateDrawdown Date. Notwithstanding anything herein to the contrary, a Swing Loan shall either be an Alternate a Base Rate Loan or a LIBOR Rate Loan with the interest rate calculated based upon an Interest Period of one month, and in the event that the Borrower fails to specify whether it has selected a Base Rate Loan or a LIBOR Rate Loan, the Borrower shall bear be deemed conclusively to have selected a LIBOR Rate Loan with the interest at rate calculated based upon an Interest Period of one month. Notwithstanding the Alternate foregoing, upon the date that the Banks shall be required to fund the Loans pursuant to Section 2.5(d) to refund such Swing Loan, the interest rate shall be reset to a LIBOR Rate Loan with an Interest Period as specified in the Loan Request given by the Borrower to the Agent in connection with such Swing Loan, or if no Interest Period is specified, then as a Base RateRate Loan. The proceeds of the Swing Loan will be made available by the Swing Loan Lender Bank to the Borrower at the Administrative Agent’s 's Head Office (on the same Banking Day that the Request for Loan was received, if received prior to the deadline stated above on such day) by crediting the account of the Borrower at such office with such proceeds.
(d) The Swing Loan Lender Bank shall within five three (53) Banking Business Days after the date a Drawdown Date with respect to such Swing Loan is madeLoan, request each LenderBank, including the Swing Loan LenderBank, to make a Line Loan pursuant to Section 2.1(a) 2.1 in an amount equal to such Lender’s Bank's Commitment Percentage of the amount of the Swing Loan outstanding on the date such notice is given. The Borrower hereby irrevocably authorizes and directs the Swing Loan Lender Bank to so act on its behalf, and agrees that any amount advanced to the Administrative Agent for the benefit of the Swing Loan Lender Bank pursuant to this Section 2.5(d) shall be considered a Line Loan pursuant to Section 2.1(a)2.1. Unless any of the events described in paragraph (h), (i) or (j) of Section 9.1(j) 12.1 shall have occurred (in which event the procedures of Section 2.5(e) shall apply), each Lender Bank shall make the proceeds of its Line Loan available to the Swing Loan Lender Agent for the account of the Swing Loan Lender Bank at the Administrative Agent’s 's Head Office prior to 1:0012:00 noon (Boston time) in funds immediately available no later than the third (3rd) Business Day after the date such notice is given just as if the Banks were funding directly to the Borrower, so that thereafter such Obligations shall be evidenced by the Revolving Credit Notes. The proceeds of such Loan shall be immediately paid by Agent to Swing Loan Bank and applied to repay the Swing Loans.
(e) If prior to the making of a Loan pursuant to Section 2.5(d) by all of the Banks, one of the events described in Section 12.1(h), (i) or (j) shall have occurred, each Bank will, on the date such Loan pursuant to Section 2.5(d) was to have been made, purchase an undivided participation interest in the Swing Loan in an amount equal to its Commitment Percentage of such Swing Loan. Each Bank will immediately transfer to the Agent for payment to the Swing Loan Bank in immediately available funds the amount of its participation and upon receipt thereof the Swing Loan Bank will deliver to such Bank a Swing Loan participation certificate dated the date of receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Bank has received from any Bank such Bank's participation interest in a Swing Loan, the Swing Loan Bank receives any payment on account thereof, the Swing Loan Bank will distribute to such Bank its participating interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Bank's participating interest was outstanding and funded); PROVIDED, HOWEVER, that in the event that such payment received by the Swing Loan Bank is required to be returned, such Bank will return to the Swing Loan Bank any portion thereof previously distributed by the Swing Loan Bank to it.
(g) Each Bank's obligation to fund a Loan as provided in Section 2.5(d) or to purchase participation interests pursuant to Section 2.5(e) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Bank or the Borrower or Guarantors may have against the Swing Loan Bank, the Borrower or Guarantors or anyone else for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrower or Guarantors or any of their respective Subsidiaries; (iv) any breach of this Agreement or any of the other Loan Documents by the Borrower or Guarantors or any Bank; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Any portions of a Swing Loan not so purchased or converted may be treated by the Swing Loan Bank as a Loan which was not funded by the non-purchasing Bank as contemplated by Section 2.8 and Section 12.4. Each Swing Loan, once so sold or converted, shall cease to be a Swing Loan for the purposes of this Agreement, but shall be a Loan made by each Bank under its Commitment.
Appears in 1 contract
Swing Loan Commitments. (a) Subject to the terms and conditions set forth in this Agreement, Swing Loan Lender Bank agrees to lend to Borrower (the “Swing Loans”), and Borrower may borrow (and repay and reborrow) from time to time between the Closing Date and the date which is thirty (30) Banking Days prior to the Maturity Date upon notice by Borrower to the Swing Loan Lender Bank given in accordance with this Section 2.5 such sums as are requested by Borrower for the purposes set forth in Section 5.9 that do not result in (i) an aggregate principal amount of Swing Loans at any one time outstanding (after giving effect to all amounts requested thereunder) being in excess of the Swing Loan Commitment, or (ii) the Outstanding Line Amount (after giving effect to all Swing Loans requested thereunder) shall not exceed the Aggregate Line Commitment, or (iii) the Outstanding Facility Amount (after giving effect to all amounts requested thereunder) being in excess of the Facility Availability Amount. Swing Loans shall constitute “Line Loans” for all purposes hereunder, but shall not be considered the utilization of a LenderBank’s Percentage of the Aggregate Line Commitment. The funding of a Swing Loan hereunder shall constitute a representation and warranty by Borrower that all of the conditions set forth in Article 8 have been satisfied on the date of such funding (other than advance notice requirements).
(b) The Swing Loans shall be evidenced by a separate promissory note of Borrower in substantially the form of Exhibit F hereto (the “Swing Loan Note”), dated the date of this Agreement and completed with appropriate insertions. The Swing Loan Note shall be payable to the order of the Swing Loan Lender Bank in such amount as may be outstanding from time to time thereunder and shall be payable as set forth below. The Borrower irrevocably authorizes the Swing Loan Lender Bank to make or cause to be made, at or about the time of the date of any Swing Loan or at the time of receipt of any payment of principal thereof, an appropriate notation on the Swing Loan LenderBank’s record reflecting the making of such Swing Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swing Loans set forth on the Swing Loan LenderBank’s record shall be prima facie evidence of the principal amount thereof owing and unpaid to the Swing Loan LenderBank, but the failure to record, or any error in so recording, any such amount on the Swing Loan LenderBank’s record shall not limit or otherwise affect the obligations of Borrower hereunder or under the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due.
(c) Each borrowing of a Swing Loan shall be subject to the limits for Alternate Base Rate Loans set forth in this Agreement. The Borrower shall request a Swing Loan by delivering to the Swing Loan Lender Bank a Request for Loan no later than 2:00 p.m. (Cleveland time) on the requested date specifying the amount of the requested Swing Loan. Each such Request for Loan shall be irrevocable and binding on Borrower and shall obligate Borrower to accept such Swing Loan on the requested date. Notwithstanding anything herein to the contrary, a Swing Loan shall be an Alternate Base Rate Loan that shall bear interest at the Alternate Base Rate. The proceeds of the Swing Loan will be made available by the Swing Loan Lender Bank to Borrower at the Administrative Agent’s Office (on the same Banking Day that the Request for Loan was received, if received prior to the deadline stated above on such day) by crediting the account of Borrower at such office with such proceeds.
(d) The Swing Loan Lender Bank shall within five (5) Banking Days after the date a Swing Loan is made, request each LenderBank, including the Swing Loan LenderBank, to make a Line Loan pursuant to Section 2.1(a) in an amount equal to such LenderBank’s Percentage of the amount of the Swing Loan outstanding on the date such notice is given. The Borrower hereby irrevocably authorizes and directs the Swing Loan Lender Bank to so act on its behalf, and agrees that any amount advanced to the Administrative Agent for the benefit of the Swing Loan Lender Bank pursuant to this Section 2.5(d) shall be considered a Line Loan pursuant to Section 2.1(a). Unless any of the events described in Section 9.1(j) shall have occurred (in which event the procedures of Section 2.5(e) shall apply), each Lender Bank shall make the proceeds of its Line Loan available to the Swing Loan Lender Bank for the account of the Swing Loan Lender Bank at the Administrative Agent’s Office prior to 1:001:00 p.m. (Cleveland time) in funds immediately available no later than the next Banking Day after the date such notice is given just as if the Banks were funding an Alternate Base Rate Loan directly to Borrower, so that thereafter such Obligations shall be evidenced by the Line Notes. The proceeds of such Line Loan shall be immediately applied to repay the Swing Loans.
(e) If prior to the making of a Line Loan pursuant to Section 2.5(d) by all of the Banks, one of the events described in Section 9.1(j) shall have occurred, each Bank will, on the date such Line Loan pursuant to Section 2.5(d) was to have been made, purchase an undivided participating interest in the Swing Loan in an amount equal to its Percentage of such Swing Loan. Each Bank will immediately transfer to the Swing Loan Bank in immediately available funds the amount of its participation and upon receipt thereof the Swing Loan Bank will deliver to such Bank a Swing Loan participation certificate dated the date of receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Bank has received from any Bank such Bank’s participating interest in a Swing Loan, the Swing Loan Bank receives any payment on account thereof, the Swing Loan Bank will distribute to such Bank its participating interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Bank’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Loan Bank is required to be returned, such Bank will return to the Swing Loan Bank any portion thereof previously distributed by the Swing Loan Bank to it.
(g) Each Bank’s obligation to fund a Line Loan as provided in Section 2.5(d) or to purchase participating interests pursuant to Section 2.5(e) shall be absolute and unconditional and shall not be affected by any circumstance (except only the failure of the Swing Loan Bank to make the request described in Section 2.5(d)), including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Bank or Borrower may have against the Swing Loan Bank, Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of Borrower or any other member of the Consolidated Group; (iv) any breach of this Agreement or any of the other Loan Documents by any Bank; (v) the failure to satisfy all of the conditions to disbursement set forth in Article 8; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. No such funding or purchase by a Bank under the preceding sentence shall be deemed to be a waiver of any claim that a Bank may otherwise have against the Administrative Agent pursuant to the terms of this Agreement. The provisions of Section 2.9 shall apply to any Bank which fails or refuses to make a Line Loan or fund its participation as provided herein. Each Swing Loan, once so converted, shall cease to be a Swing Loan for the purposes of this Agreement, but shall be a Line Loan made by each Bank under its Commitment.
Appears in 1 contract
Samples: Unsecured Credit Agreement (BioMed Realty Trust Inc)
Swing Loan Commitments. (a) Subject to the terms and conditions set forth in this Agreement, Swing Loan Lender Bank agrees to lend to Borrower (the “"Swing Loans”"), and Borrower may borrow (and repay and reborrow) from time to time between the Closing Date and the date which is thirty (30) Banking Days prior to the Maturity Date upon notice by Borrower to the Swing Loan Lender Bank given in accordance with this Section 2.5 such sums as are requested by Borrower for the purposes set forth in Section 5.9 that do not result in (i) an aggregate principal amount of Swing Loans at any one time outstanding (after giving effect to all amounts requested thereunder) being in excess of the Swing Loan Commitment, or (ii) the Outstanding Line Amount (after giving effect to all Swing Loans requested thereunder) shall not exceed aggregate principal amount outstanding under the Aggregate Line Commitment, or (iii) the Outstanding Facility Amount Notes (after giving effect to all amounts requested thereunder) plus the Letter of Credit Exposure being in excess of the Facility Availability Amount. Swing Loans shall constitute “"Line Loans” " for all purposes hereunder, but shall not be considered the utilization of a Lender’s Bank's Percentage of the Aggregate Line CommitmentCommitments. The funding of a Swing Loan hereunder shall constitute a representation and warranty by Borrower that all of the conditions set forth in Article 8 have been satisfied on the date of such funding (other than advance notice requirements).
(b) The Swing Loans shall be evidenced by a separate promissory note of Borrower in substantially the form of Exhibit F hereto (the “"Swing Loan Note”"), dated the date of this Agreement and completed with appropriate insertions. The Swing Loan Note shall be payable to the order of the Swing Loan Lender Bank in such amount as may be outstanding from time to time thereunder and shall be payable as set forth below. The Borrower irrevocably authorizes the Swing Loan Lender Bank to make or cause to be made, at or about the time of the date of any Swing Loan or at the time of receipt of any payment of principal thereof, an appropriate notation on the Swing Loan Lender’s Bank's record reflecting the making of such Swing Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swing Loans set forth on the Swing Loan Lender’s Bank's record shall be prima facie evidence of the principal amount thereof owing and unpaid to the Swing Loan LenderBank, but the failure to record, or any error in so recording, any such amount on the Swing Loan Lender’s Bank's record shall not limit or otherwise affect the obligations of Borrower hereunder or under the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due.
(c) Each borrowing of a Swing Loan shall be subject to the limits for Alternate Base Rate Loans set forth in this Agreement. The Borrower shall request a Swing Loan by delivering to the Swing Loan Lender Bank a Request for Loan no later than 2:00 p.m. (Cleveland time) on the requested date specifying the amount of the requested Swing Loan. Each such Request for Loan shall be irrevocable and binding on Borrower and shall obligate Borrower to accept such Swing Loan on the requested date. Notwithstanding anything herein to the contrary, a Swing Loan shall be an Alternate Base Rate Loan that shall bear interest at the Alternate Base Rate. The proceeds of the Swing Loan will be made available by the Swing Loan Lender Bank to Borrower at the Administrative Agent’s 's Office (on the same Banking Day that the Request for Loan was received, if received prior to the deadline stated above on such day) by crediting the account of Borrower at such office with such proceeds.
(d) The Swing Loan Lender Bank shall within five (5) Banking Days after the date a Swing Loan is made, request each LenderBank, including the Swing Loan LenderBank, to make a Line Loan pursuant to Section 2.1(a) in an amount equal to such Lender’s Bank's Percentage of the amount of the Swing Loan outstanding on the date such notice is given. The Borrower hereby irrevocably authorizes and directs the Swing Loan Lender Bank to so act on its behalf, and agrees that any amount advanced to the Administrative Agent for the benefit of the Swing Loan Lender Bank pursuant to this Section 2.5(d) shall be considered a Line Loan pursuant to Section 2.1(a). Unless any of the events described in Section 9.1(j) shall have occurred (in which event the procedures of Section 2.5(e) shall apply), each Lender Bank shall make the proceeds of its Line Loan available to the Swing Loan Lender Bank for the account of the Swing Loan Lender Bank at the Administrative Agent’s 's Office prior to 1:001:00 p.m. (Cleveland time) in funds immediately available no later than the next Banking Day after the date such notice is given just as if the Banks were funding an Alternate Base Rate Loan directly to Borrower, so that thereafter such Obligations shall be evidenced by the Line Notes. The proceeds of such Line Loan shall be immediately applied to repay the Swing Loans.
(e) If prior to the making of a Line Loan pursuant to Section 2.5(d) by all of the Banks, one of the events described in Section 9.1(j) shall have occurred, each Bank will, on the date such Line Loan pursuant to Section 2.5(d) was to have been made, purchase an undivided participating interest in the Swing Loan in an amount equal to its Percentage of such Swing Loan. Each Bank will immediately transfer to the Swing Loan Bank in immediately available funds the amount of its participation and upon receipt thereof the Swing Loan Bank will deliver to such Bank a Swing Loan participation certificate dated the date of receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Bank has received from any Bank such Bank's participating interest in a Swing Loan, the Swing Loan Bank receives any payment on account thereof, the Swing Loan Bank will distribute to such Bank its participating interest in such amount (appropriately adjusted in the case of interest payments to reflect the period of time during which such Bank's participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Loan Bank is required to be returned, such Bank will return to the Swing Loan Bank any portion thereof previously distributed by the Swing Loan Bank to it.
(g) Each Bank's obligation to fund a Line Loan as provided in Section 2.5(d) or to purchase participating interests pursuant to Section 2.5(e) shall be absolute and unconditional and shall not be affected by any circumstance (except only the failure of the Swing Loan Bank to make the request described in Section 2.5(d)), including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Bank or Borrower may have against the Swing Loan Bank, Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of Borrower or any other member of the Consolidated Group; (iv) any breach of this Agreement or any of the other Loan Documents by any Bank; (v) the failure to satisfy all of the conditions to disbursement set forth in Article 8; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. No such funding or purchase by a Bank under the preceding sentence shall be deemed to be a waiver of any claim that a Bank may otherwise have against the Administrative Agent pursuant to the terms of this Agreement. The provisions of Section 2.9 shall apply to any Bank which fails or refuses to make a Line Loan or fund its participation as provided herein. Each Swing Loan, once so converted, shall cease to be a Swing Loan for the purposes of this Agreement, but shall be a Line Loan made by each Bank under its Commitment.
Appears in 1 contract
Samples: Unsecured Credit Agreement (BioMed Realty Trust Inc)
Swing Loan Commitments. (a) Subject to the terms and conditions set forth in this Agreement, Swing Loan Lender agrees to lend to Borrower (the “Swing Loans”), and Borrower may borrow (and repay and reborrow) from time to time between the Closing Date and the date which is thirty (30) Banking Days prior to the Maturity Date upon notice by Borrower to the Swing Loan Lender given in accordance with this Section 2.5 such sums as are requested by Borrower for the purposes set forth in Section 5.9 that do not result in (i) an aggregate principal amount of Swing Loans at any one time outstanding (after giving effect to all amounts requested thereunder) being in excess of the Swing Loan Commitment, or (ii) the Outstanding Line Facility Amount (after giving effect to all Swing Loans requested thereunder) shall not exceed the Aggregate Line Commitment, or (iii) the Outstanding Facility Amount (after giving effect to all amounts requested thereunder) being in excess of the Facility Availability AmountAggregate Commitment. Swing Loans shall constitute “Line Loans” for all purposes hereunder, but shall not be considered the utilization of a Lender’s Percentage of the Aggregate Line Commitment. The funding of a Swing Loan hereunder shall constitute a representation and warranty by Borrower that all of the conditions set forth in Article 8 have been satisfied on the date of such funding (other than advance notice requirements).
(b) The Swing Loans shall be evidenced by a separate promissory note of Borrower in substantially the form of Exhibit F hereto (the “Swing Loan Note”), dated the date of this Agreement and completed with appropriate insertions. The Swing Loan Note shall be payable to the order of the Swing Loan Lender in such amount as may be outstanding from time to time thereunder and shall be payable as set forth below. The Borrower irrevocably authorizes the Swing Loan Lender to make or cause to be made, at or about the time of the date of any Swing Loan or at the time of receipt of any payment of principal thereof, an appropriate notation on the Swing Loan Lender’s record reflecting the making of such Swing Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swing Loans set forth on the Swing Loan Lender’s record shall be prima facie evidence of the principal amount thereof owing and unpaid to the Swing Loan Lender, but the failure to record, or any error in so recording, any such amount on the Swing Loan Lender’s record shall not limit or otherwise affect the obligations of Borrower hereunder or under the Swing Loan Note to make payments of principal of or interest on any Swing Loan Note when due.
(c) Each borrowing of a Swing Loan shall be subject to the limits for Alternate Base Rate Loans set forth in this Agreement. The Borrower shall request a Swing Loan by delivering to the Swing Loan Lender a Request for Loan no later than 2:00 p.m. (Cleveland time) on the requested date specifying the amount of the requested Swing Loan. Each such Request for Loan shall be irrevocable and binding on Borrower and shall obligate Borrower to accept such Swing Loan on the requested date. Notwithstanding anything herein to the contrary, a Swing Loan shall be an Alternate Base Rate Loan that shall bear interest at the Alternate Base One Day LIBOR Rate. The proceeds of the Swing Loan will be made available by the Swing Loan Lender to Borrower at the Administrative Agent’s Office (on the same Banking Day that the Request for Loan was received, if received prior to the deadline stated above on such day) by crediting the account of Borrower at such office with such proceeds.
(d) The Swing Loan Lender shall within five (5) Banking Days after the date a Swing Loan is made, request each Lender, including the Swing Loan Lender, to make a Line Loan pursuant to Section 2.1(a) in an amount equal to such Lender’s Percentage of the amount of the Swing Loan outstanding on the date such notice is given. The Borrower hereby irrevocably authorizes and directs the Swing Loan Lender to so act on its behalf, and agrees that any amount advanced to the Administrative Agent for the benefit of the Swing Loan Lender pursuant to this Section 2.5(d) shall be considered a Line Loan pursuant to Section 2.1(a). Unless any of the events described in Section 9.1(j) shall have occurred (in which event the procedures of Section 2.5(e) shall apply), each Lender shall make the proceeds of its Line Loan available to the Swing Loan Lender for the account of the Swing Loan Lender at the Administrative Agent’s Office prior to 1:001:00 p.m. (Cleveland time) in funds immediately available no later than the next Banking Day after the date such notice is given just as if the Lenders were funding a Base Rate Loan directly to Borrower, so that thereafter such Obligations shall be evidenced by the Notes. The proceeds of such Loan shall be immediately applied to repay the Swing Loans.
(e) If prior to the making of a Loan pursuant to Section 2.5(d) by all of the Lenders, one of the events described in Section 9.1(j) shall have occurred, each Lender will, on the date such Loan pursuant to Section 2.5(d) was to have been made, purchase an undivided participating interest in the Swing Loan in an amount equal to its Percentage of such Swing Loan. Each Lender will immediately transfer to the Swing Loan Lender in immediately available funds the amount of its participation and upon receipt thereof the Swing Loan Lender will deliver to such Lender a Swing Loan participation certificate dated the date of receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Lender has received from any Lender such Lender’s participating interest in a Swing Loan, the Swing Loan Lender receives any payment on account thereof, the Swing Loan 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 received by the Swing Loan Lender is required to be returned, such Lender will return to the Swing Loan Lender any portion thereof previously distributed by the Swing Loan Lender to it.
(g) Each Lender’s obligation to fund a Loan as provided in Section 2.5(d) or to purchase participating interests pursuant to Section 2.5(e) shall be absolute and unconditional and shall not be affected by any circumstance (except only the failure of the Swing Loan Lender to make the request described in Section 2.5(d)), including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender or Borrower may have against the Swing Loan Lender, Borrower or anyone else for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in the condition (financial or otherwise) of Borrower or any other member of the Consolidated Group; (iv) any breach of this Agreement or any of the other Loan Documents by any Lender; (v) the failure to satisfy all of the conditions to disbursement set forth in Article 8; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. No such funding or purchase by a Lender under the preceding sentence shall be deemed to be a waiver of any claim that a Lender may otherwise have against the Administrative Agent pursuant to the terms of this Agreement. The provisions of Section 2.9 shall apply to any Lender which fails or refuses to make a Loan or fund its participation as provided herein. Each Swing Loan, once so converted, shall cease to be a Swing Loan for the purposes of this Agreement, but shall be a Loan made by each Lender under its Commitment.
Appears in 1 contract
