Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future. (b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason. (c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 8 contracts
Sources: Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO Petroleum Corp.), Revolving Credit and Security Agreement (ARKO Corp.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof), Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 7 contracts
Sources: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“"Swing Loans”") available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans Loans, FILO Advances and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount Amount, less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula AmountBorrowing Base. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All To the extent requested by Swing Loan Lender, Swing Loans shall be evidenced by a secured promissory note (the “"Swing Loan Note”") substantially in the form attached hereto as Exhibit 2.4(a) hereto(or such other form as agreed in writing by Agent and Borrowing Agent). Swing Loan Lender’s 's agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance or FILO Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance or FILO Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances or FILO Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 5 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (B. Riley Financial, Inc.), Revolving Credit, Term Loan and Security Agreement (B. Riley Financial, Inc.), Revolving Credit, Term Loan and Security Agreement (B. Riley Financial, Inc.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 4 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving the Lenders holding Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 2.14 at any time or from time to time after the Closing Date to, but not including, the last day of the TermMaturity Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances Facility Usage shall not at any one time outstanding shall not exceed an amount equal to the lesser Line Cap (other than as a result of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amountany Protective Advance). All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 2.14 during the period between Settlement Dates. All Swing Loans Loans, if requested by the Swing Loan Lender, shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto2.14(a). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (ix) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (iiy) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender holding a Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders holding Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof2.10(d). From and after the date, if any, on which any Revolving Lender holding a Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender holding a Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.13) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 4 contracts
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement (Emerge Energy Services LP)
Swing Loans. (aA) Subject So long as the Swing Line Lender elects to make Swing Loans, promptly, but in any event no later than 2:00 P.M. New York City time on the date specified in each Notice of Borrowing, the Swing Line Lender will make available to the terms and conditions set forth in this Agreement, and in order Company by depositing to minimize its account at the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate Payment Office (or such other account as the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”Company shall specify) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal requested in such Notice of Borrowing.
(B) In addition to making Swing Loans pursuant to the lesser foregoing provisions of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan LenderSection 2.05(a), repay and re-borrow (at without the option and election of requirement for a specific request from the Company pursuant to Section 2.08(b), the Swing Loan Lender) Swing Loans and Swing Loan Line Lender may make Swing Loans as provided to the Company in this Section 2.4 during accordance with the period provisions of any agreements between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever Company and the making Swing Line Lender relating to the Company’s deposit, sweep and other accounts with the Swing Line Lender and related arrangements and agreements regarding the management and investment of Swing Loans by Swing Loan Lender the Company’s cash assets as in effect from time to time shall not create any duty or obligation, or establish any course (the “Cash Management Agreements”) to the extent of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans the daily aggregate net negative balance in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant Company’s accounts which are subject to the provisions of the Cash Management Agreements. Swing Loans made pursuant to this Section 2.2(a2.09(d)(iv)(B) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything accordance with the provisions of the Cash Management Agreements shall (i) be subject to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions limitations as to aggregate amount set forth in Section 8.2 hereof have not been satisfied or 2.05(a), (ii) be subject to any limitations as to individual amount set forth in the Cash Management Agreement, (iii) be payable by the Company, both as to principal and interest, at the times set forth in the Cash Management Agreements (but in no event later than the Revolving Commitments have been terminated for Facility Termination Date), (iv) not be made at any reason.
(c) Upon the making of a Swing Loan (whether before or time after the Swing Line Lender has notice of the occurrence and during the continuance of a Default or an Event of Default Default, (v) if not repaid by the Company in accordance with the provisions of the Cash Management Agreements, be subject to each Lender’s obligation to purchase participating interests therein pursuant to Section 2.05(c) and regardless of whether a Settlement has been requested with respect to such Swing Loan(vi) except as provided in the foregoing subsections (i) through (v), each Revolving Lender shall be deemed, without further action by any party hereto, subject to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount terms and conditions of all outstanding Letters of CreditSection 2.05.
Appears in 4 contracts
Sources: Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans in Dollars (each a “Swing LoansLoan”) otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Revolving Credit Facility from time to time after on any Business Day during the period from the Closing Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for outstanding at any reason whatsoever and time not to exceed the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligationAvailability; provided, or establish any course of conducthowever, pursuant to which that the Swing Loan Lender shall thereafter not make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. The Swing Loan Lender shall be obligated entitled to make rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Prime Rate Loan and must be repaid in full within one Business Day of any demand by the Swing Loan Lender therefor and shall in any event mature and become due and payable on the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this Section 2.3(a), amounts of Swing Loans in the futureprepaid or repaid may be reborrowed under this Section 2.3(a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy (or forward by electronic mail or similar means) to the contrary provided for hereinAdministrative Agent a duly completed request, in substantially the form of Exhibit C, setting forth the date, the requested amount and date of the Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. (New York City time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent which will make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Lender that one or more of the applicable conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (which may be by telecopy or electronic mail) weekly, by no later than 10:00 a.m. (New York City time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (e) below, such Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York City time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Lender shall, before or after 11:00 a.m. (New York City time) on the Business Day next succeeding the date of such Lender’s receipt of such written statement, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (g) below, be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 9.1(e), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Prime Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bPrime Rate Loans.
(g) hereof. From and after the date, if any, date on which any Lender (i) is deemed to have made a Revolving Lender is required Loan pursuant to fund, and funds, its participation in clause (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 4 contracts
Sources: Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made BofA may elect in its sole discretion cancelable to make loans that shall bear interest at any time the Federal Funds Rate plus 0.50% per annum (each, a "Swing Loan") to a Borrower solely for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or BofA's own account from time to time on or after the Closing Refinancing Date to, but not including, and prior to the last day of the Term, in Commitment Termination Date up to an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding to both of the Borrowers not to exceed $25,000,000; provided, however, that after giving effect to any Swing Loan, the aggregate principal amount of all outstanding Loans shall not exceed an amount equal to the lesser least of (i) the Maximum Revolving Advance Amount less Commitment of BofA; (ii) the Maximum Undrawn Amount combined Commitments of all outstanding Letters the Banks; and (iii) the Borrowing Base. BofA may make Swing Loans (subject to the conditions precedent set forth in Section 4.2), provided that BofA receives notice no later than 2:00 p.m. (Eastern time) either (i) by facsimile transmission of Credit a Loan Request or (ii) by telephone notice from an Authorized Officer of the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election relevant Borrower for funding of a Swing Loan Lender), repay and re-borrow (at on the option and election of Business Day on which such Swing Loan Lender) Swing Loans and is requested to be made. BofA shall not make any Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders after BofA becomes aware that one or more of the applicable conditions set forth precedent contained in Section 8.2 hereof 4.2 is not satisfied until such conditions have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of waived. If a Borrower shall request by telephonic notice and obtain a Swing Loan, it shall deliver promptly by facsimile transmission to BofA a Loan (whether before or after Request signed by an Authorized Officer of the occurrence Borrower confirming such telephonic notice for a Swing Loan. If the information contained in any such Loan Request differs in any material respect from the action taken by BofA, the records of a Default or an Event of Default BofA shall govern, absent manifest error. Each outstanding Swing Loan shall be payable no later than the seventh Business Day next following the day the Swing Loan was made, with interest at the Federal Funds Rate plus 0.50% per annum, and regardless of whether a Settlement has been requested with respect shall be subject to all the terms and conditions applicable to Loans, except that all interest thereon shall be payable to BofA solely for its own account. On the due date for such Swing Loan, unless the relevant Borrower delivers or has previously delivered to BofA a notice of its intention to repay and does repay the Swing Loan prior to 12:00 noon (Eastern time), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from such Swing Loan Lendershall automatically convert to a Federal Funds Rate Loan under this Agreement, and each Bank (other than BofA), shall irrevocably and unconditionally purchase from BofA, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion an amount equal to its Revolving Commitment Percentagesuch Bank's Pro Rata Share and promptly pay such amount to BofA in immediately available funds (which payment shall be due by 2:00 p.m. (Eastern time) on such day if BofA requests payment therefor prior to 12:00 noon (Eastern time) on such day; otherwise such payment shall be due by 2:00 p.m. (Eastern time) on the first Business Day after BofA requests the same). Swing Loan Lender Such payment shall be made by the other Banks whether or Agent may, at not an Event of Default or a Default is then continuing or any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for other condition precedent set forth in Section 2.20(b) hereof4.2 is then met and whether or not the relevant Borrower has then requested a Loan in such amount. From and after the dateIf such amount is not in fact paid to BofA by any Bank, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender BofA shall be obligated in any event entitled to make Revolving Advances in an recover such amount in excess of its Revolving Commitment Amount minus its Participation Commitment on demand from such Bank, together with accrued interest thereon from the due date therefor (taking into account any reallocations under Section 2.23 hereofif made prior to 2:00 p.m., Eastern time) of the Maximum Undrawn Amount of all outstanding Letters of Credit.on any
Appears in 4 contracts
Sources: Credit Agreement (Van Kampen Prime Rate Income Trust), Credit Agreement (Van Kampen Senior Floating Rate Fund), Credit Agreement (Van Kampen Prime Rate Income Trust)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans in Dollars (each a “Swing LoansLoan”) otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Revolving Credit Facility from time to time after on any Business Day during the period from the Closing Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for outstanding at any reason whatsoever and time not to exceed the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligationAvailability; provided, or establish any course of conducthowever, pursuant to which that the Swing Loan Lender shall thereafter not make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. The Swing Loan Lender shall be obligated entitled to make rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within one Business Day of any demand by the Swing Loan Lender therefor and shall in any event mature and become due and payable on the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this Section 2.3(a), amounts of Swing Loans in the futureprepaid or repaid may be reborrowed under this Section 2.3(a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy (or forward by electronic mail or similar means) to the contrary provided for hereinAdministrative Agent a duly completed request, in substantially the form of Exhibit C, setting forth the date, the requested amount and date of the Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. (New York City time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent which will make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Lender that one or more of the applicable conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (which may be by telecopy or electronic mail) weekly, by no later than 10:00 a.m. (New York City time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (e) below, such Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York City time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Lender shall, before or after 11:00 a.m. (New York City time) on the Business Day next succeeding the date of such Lender’s receipt of such written statement, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (g) below, be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 9.1(e), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Lender (i) is deemed to have made a Revolving Lender is required Loan pursuant to fund, and funds, its participation in clause (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 4 contracts
Sources: Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreementshall make loans (each, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (a “Swing LoansLoan”) otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Revolving Credit Facility from time to time after on any Business Day during the Closing period from the Restatement Effective Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of at any time outstanding (together with the Maximum Swing Loan Advance Amount, provided that the aggregate outstanding aggregate principal amount of any other Loan made by the Swing Loans and Loan Lender hereunder in its capacity as the Revolving Advances Swing Loan Lender) not to exceed the Swing Loan Sublimit; provided, however, that at no time shall (A) the Swing Loan Lender make any one time outstanding shall not exceed an amount equal Swing Loan to the lesser of (i) extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (iiB) the Formula Amount. All amount of the Revolving Credit Outstandings (after giving effect to such Swing Loans Loan) plus the Term Outstandings exceed the Maximum Credit; provided further that in the event that the Swing Loan Lender and the Administrative Agent are not the same Person, then the Swing Loan Lender shall only make a Swing Loan after having given prior notice thereof to the Administrative Agent; provided further that the Swing Loan Lender shall not be Domestic Rate Loans only. Borrowers may borrow required to make any Swing Loan to the extent that such Swing Loan Lender reasonably believes that any Revolving Credit Lender is a Defaulting Lender, unless after giving effect to the requested Swing Loans, there would exist no Fronting Exposure (at in the option and election good faith determination of the Swing Loan Lender), repay and re-borrow (at the option and election of . Each Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note Base Rate Loan and must be repaid in full within seven (7) days after its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the “Swing Loan Note”) substantially Revolving Credit Termination Date (without giving effect to any extensions of the type referred to in the form attached as Exhibit 2.4(aproviso to Section 12.1(b) heretohereof). Swing Loan Lender’s agreement to make Swing Loans under Within the limits set forth in the first sentence of this Agreement is cancelable at any time for any reason whatsoever and the making clause (a), amounts of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter repaid may be obligated to make Swing Loans in the futurereborrowed under this clause (a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy (or forward by electronic mail or similar means) to the contrary provided for hereinAdministrative Agent a duly completed request in substantially the form of Exhibit D, setting forth the requested amount and date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower as promptly as reasonably practicable on the date set forth in the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan (other than a Protective Advance) in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Lender that one or more of the applicable conditions precedent contained in Section 4.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 4.2 have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender may demand at any time that each Revolving Credit Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (d) below, such Revolving Credit Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) The Administrative Agent shall forward each demand referred to in clause (c) above to each Revolving Credit Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. on any Business Day or any such notice or demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Sections 4.2 and 2.1 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Revolving Credit Lender shall, before 11:00 a.m. on the Business Day next succeeding the date of such Lender’s receipt of such notice or after demand, make available to the Administrative Agent, in Same Day Funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except as provided in clause (e) below, be deemed to have made a Revolving Loan to the Borrower in the amount of such payment. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender.
(e) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 10.1(f), each Revolving Credit Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Revolving Credit Lender pursuant to clause (d) above, which participation shall be in a principal amount equal to such Revolving Credit Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Revolving Credit Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (d) above, in proportion Same Day Funds, an amount equal to its such Revolving Commitment PercentageCredit Lender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Revolving Credit Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Revolving Credit Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(f) hereof. From and after the date, if any, date on which any Revolving Credit Lender (i) is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (d) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (e) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender’s Ratable Portion of all payments of principal and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofd) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (e) above.
Appears in 3 contracts
Sources: Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, during the Commitment Period Agent shall make a Swing Loan Lender may, at its election and option made or Swing Loans to Nordson in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers such amount or amounts as provided for in this Section 2.4 at any time or Nordson may from time to time request; provided however, that Nordson shall not request any Swing Loan hereunder if, after giving effect thereto, (a) the Revolving Exposure would exceed the Total Commitment Amount, or (b) the Swing Line Exposure would exceed the Swing Line Commitment. Each Swing Loan shall be due and payable on the Swing Loan Maturity Date applicable thereto. Nordson shall not request that more than three (3) Swing Loans be outstanding at any time. Each Swing Loan shall be made in Dollars. Nordson shall pay interest, for the sole benefit of Agent (and any Bank that has purchased a participation in such Swing Loan), on the unpaid principal amount of each Swing Loan outstanding from time to time from the date thereof until paid at the Derived Swing Loan Rate applicable to such Swing Loan. Interest on each Swing Loan shall be payable on the Swing Loan Maturity Date applicable thereto. Each Swing Loan shall bear interest for a minimum of one (1) day. The obligation of Nordson to repay the Swing Loans and to pay interest thereon shall be evidenced by a Swing Line Note of Nordson substantially in the form of Exhibit B hereto, dated the Closing Date toDate, but not includingand payable to the order of Agent in the principal amount of the Swing Line Commitment, or, if less, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate unpaid principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal made hereunder by Agent. Subject to the lesser provisions of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans this Agreement, Nordson shall be Domestic Rate Loans only. Borrowers may entitled under this Section 2.01B to borrow (at the option and election of Swing Loan Lender)funds, repay the same in whole or in part and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable hereunder at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time during the Commitment Period. If Agent so elects, by giving notice to Nordson and the Banks, Nordson agrees that Agent shall not create have the right, in its reasonable discretion, to require that any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for refinanced as a Revolving Advance made Loan. Such Revolving Loan shall be a Base Rate Loan unless and until converted by a Borrower to a Eurodollar Loan pursuant to Section 2.2(a) hereof or (ii) 2.01A and Section 2.02 hereof. Upon receipt of such notice by Nordson, Nordson shall be deemed, on such day, to have requested a Revolving Loan in the principal amount of the Swing Loan in accordance with Section 2.01A and Section 2.02 hereof. Each Bank agrees to make a Revolving Loan on the date of such notice, subject to no conditions precedent whatsoever. Each Bank acknowledges and agrees that such Bank’s obligation to make a Revolving Loan pursuant to Section 2.01A when required by this Section 2.01B is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, the occurrence and continuance of a Default or Event of Default, and that its payment to Agent, for the account of Agent, of the proceeds of such Revolving Loan shall be made without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether or not such Bank’s Revolving Commitment shall have been reduced or terminated. Nordson irrevocably authorizes and instructs Agent to apply the proceeds of any deemed request by Borrowers borrowing pursuant to this paragraph to repay in full such Swing Loan. If, for any reason, Agent is unable to or, in the opinion of Agent, it is impracticable to, convert any Swing Loan to a Revolving Advance Loan pursuant to the provisions of Section 2.2(a) hereofpreceding paragraph, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same then on any day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan is outstanding (whether before or after the maturity thereof), Agent shall have the right to request that each Bank purchase a participation in such Swing Loan, and Agent shall promptly notify each Bank thereof (by facsimile or telephone, confirmed in writing). Upon such notice, but without further action, Agent hereby agrees to grant to each Bank, and each Bank hereby agrees to acquire from Agent, an undivided participation interest in such Swing Loan in an amount equal to such Bank’s Commitment Percentage of the aggregate principal amount of such Swing Loan. In consideration and in furtherance of the foregoing, each Bank hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to Agent, for its sole account, such Bank’s ratable share of such Swing Loan (determined in accordance with such Bank’s Commitment Percentage). Each Bank acknowledges and agrees that its obligation to acquire participations in Swing Loans pursuant to this Section 2.01B is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, the occurrence and continuance of a Default or an Event of Default Default, and regardless that each such payment shall be made without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether or not such Bank’s Revolving Commitment shall have been reduced or terminated. Each Bank shall comply with its obligation under this Section 2.01B by wire transfer of whether a Settlement has been requested immediately available funds, in the same manner as provided in Section 2.02 hereof with respect to Revolving Loans to be made by such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of CreditBank.
Appears in 3 contracts
Sources: Credit Agreement (Nordson Corp), Credit Agreement (Nordson Corp), Credit Agreement (Nordson Corp)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances (including, without limitation, Swing Loans) at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula AmountLoan Cap. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Build-a-Bear Workshop Inc), Revolving Credit and Security Agreement (Build-a-Bear Workshop Inc), Revolving Credit and Security Agreement (Build a Bear Workshop Inc)
Swing Loans. (a) Subject to During the term of this Agreement, the Swing Lender agrees, on the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order make advances to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available Borrower pursuant to Borrowers as provided for in this Section 2.4 at any time or from time to time after in amounts such that (i) the Closing Date to, but aggregate of such advance and amount of Swing Loans theretofore advanced and still outstanding does not including, at any time exceed the last day Swing Loan Commitment and (ii) the amount of such advance does not exceed the Term, Available Total Loan Commitment. Each advance under this Section shall be in an aggregate principal amount up to but not of $1,000,000 or a larger multiple of $100,000 (except that any such advance may be in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal available amount of Swing Loans and determined in accordance with the Revolving Advances at any one time outstanding shall not exceed an amount equal immediately preceding sentence). With the foregoing limits, Borrower may borrow under this Section, repay or, to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender)extent permitted by Section 2.09, repay and re-borrow (at the option and election of Swing Loan Lender) prepay Swing Loans and Swing Loan Lender may make Swing Loans as provided in reborrow under this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and during the making term of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the futurethis Agreement.
(b) Upon either The Swing Lender shall, on behalf of Borrower (which hereby irrevocably directs the Swing Lender to act on its behalf), on notice given by the Swing Lender no later than 1:00 p.m. (New York time) on the Banking Day immediately following the funding of any Swing Loan, request each Bank to make, and each Bank hereby agrees to make, an advance of its Ratable Loan, in an amount (with respect to each Bank, its “Swing Loan Refund Amount”) equal to such Bank’s Pro Rata Share of the aggregate principal amount of the Swing Loans (the “Refunded Swing Loans”) outstanding on the date of such notice, to repay the Swing Lender. Unless any of the events described in paragraph (5) of Section 9.01 with respect to Borrower shall have occurred and be continuing (in which case the procedures of paragraph (c) of this Section shall apply), each Bank shall make such advance of its Ratable Loan available to Administrative Agent at Administrative Agent’s Office in immediately available funds, not later than 1:00 p.m. (New York time), on the third Banking Day immediately following the date of such notice. Administrative Agent shall pay the proceeds of such advance of Ratable Loans to the Swing Lender, which shall immediately apply such proceeds to repay Refunded Swing Loans. Effective on the day such advances of Ratable Loans are made, the portion of the Swing Loans so paid shall no longer be outstanding as Swing Loans, shall no longer be due as Swing Loans under the Swing Loan Note held by the Swing Lender, and shall be due as Ratable Loans under the respective Ratable Loan Notes issued to the Banks (including the Swing Lender). Borrower authorizes the Swing Lender to charge Borrower’s accounts with Administrative Agent (up to the amount available in each such accounts) in order to immediately pay the amount of such Refunded Swing Loans to the extent amounts received from the Banks are not sufficient to repay in full such Refunded Swing Loans.
(c) If, prior to the time advances of Ratable Loans would have otherwise been made pursuant to paragraph (b) of this Section, one of the events described in paragraph (5) of Section 9.01 with respect to the Borrower shall have occurred and be continuing, each Bank shall, on the date such advances were to have been made pursuant to the notice referred to in paragraph (b) of this Section (the “Refunding Date”), purchase an undivided participating interest in the Swing Loans in an amount equal to such Bank’s Swing Loan Refund Amount. On the Refunding Date, each Bank shall transfer to the Swing Lender, in immediately available funds, such Bank’s Swing Loan Refund Amount, and upon receipt thereof, the Swing Lender shall deliver to such Bank a Swing Loan participation certificate dated the date of the Swing Lender’s receipt of such funds and in the Swing Loan Refund Amount of such Bank.
(d) Whenever, at any time after the Swing Lender has received from any Bank such Bank’s Swing Loan Refund Amount pursuant to paragraph (c) of this Section, the Swing Lender receives any payment on account of the Swing Loans in which the Banks have purchased Participations pursuant to said paragraph (c), the Swing Lender will promptly distribute to each such Bank its ratable share (determined on the basis of the Swing Loan Refund Amounts of all of the Banks) of such payment (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 Lender is required to be returned, such Bank will return to the Swing Lender any portion thereof previously distributed to it by the Swing Lender.
(e) Each Bank’s obligation to make an advance of its Ratable Loan as provided in paragraph (b) of this Section or to purchase a participating interest pursuant to paragraph (c) of this Section shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof set-off, counterclaim, recoupment, defense or other right which such Bank, Borrower or any other Person may have against the Swing Lender or any other Person, (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence continuance of a Default or an Event of Default, the termination or reduction of the Loan Commitments or the non-satisfaction of any condition precedent to the making of any advance of the Loans, (iii) any adverse change in the condition (financial or otherwise) of Borrower or any other Person, (iv) any breach of this Agreement by Borrower, any other Bank or any other Person or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(f) Notwithstanding anything above in this Section or elsewhere in this Agreement to the contrary, in the event that the Swing Lender funds a Swing Loan hereunder when it has actual knowledge that a monetary Default, or material Event of Default (which, for the avoidance of doubt shall include any violation of any provision of Article VII or Article VIII) has occurred and regardless of whether a Settlement has been requested with respect to such Swing Loan)is continuing, each Revolving Lender the Banks shall be deemedhave the option, without further action by any party heretobut not the obligation, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in make Ratable Loans to fund their ratable shares of such Swing Loan as contemplated in proportion paragraph (b) of this Section or to its Revolving Commitment Percentage. Swing Loan Lender or Agent maypurchase participations as contemplated in paragraph (c) of this Section.
(g) For purposes of Article III, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event deemed to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditbe LIBOR Loans.
Appears in 3 contracts
Sources: Revolving Loan Agreement (Avalonbay Communities Inc), Revolving Loan Agreement (Avalonbay Communities Inc), Revolving Loan Agreement (Avalonbay Communities Inc)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, [PHI Group] Revolving Credit, Term Loan and Security Agreement without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“"Swing Loans”") available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the sum of the aggregate Dollar Equivalent of the Maximum Undrawn Amount of all outstanding Letters of Credit, the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula AmountAvailability at such time. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “"Swing Loan Note”") substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s 's agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) . Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if (x) Borrowing Agent has requested a Term SOFR Rate Loan or (y) Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) . Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Dollar Equivalent of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Great Lakes Dredge & Dock CORP), Revolving Credit and Security Agreement (Great Lakes Dredge & Dock CORP)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Revolving Lenders and Administrative Agent for administrative convenience, Administrative Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Administrative Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Administrative Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Administrative Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Administrative Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (A.S.V., LLC), Revolving Credit, Term Loan and Security Agreement (Manitex International, Inc.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing SixteenthNineteenth Amendment Effective Date to, but not including, the last day of the TermMaturity Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured fourth amended and restated promissory note (the “by Borrowers in favor of Swing Loan Note”) Lender substantially in the form attached as Exhibit 2.4(a) heretohereto (the “Swing Loan Note”). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereof. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 2.22 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/), Revolving Credit and Security Agreement (Quantum Corp /De/)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that shall make, in order to facilitate the administration of this AgreementDollars, Swing Loan Lender mayloans (each, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (a “Swing LoansLoan”) otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Facility from time to time after on any Business Day during the Closing period from the Effective Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of at any time outstanding (together with the Maximum Swing Loan Advance Amount, provided that the aggregate outstanding aggregate principal amount of any other Loan made by the Swing Loans Loan Lender hereunder in its capacity as the Swing Loan Lender) not to exceed the Swing Loan Sublimit; provided, however, that at no time shall the Swing Loan Lender make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit; provided further that in the event that the Swing Loan Lender and the Revolving Advances at any one time outstanding Administrative Agent are not the same Person, then the Swing Loan Lender shall only make a Swing Loan after having given prior notice thereof to the Administrative Agent; provided further that the Swing Loan Lender shall not exceed an amount equal be required to make any Swing Loan to the lesser extent that such Swing Loan Lender reasonably believes that any Lender is a Defaulting Lender, unless after giving effect to the requested Swing Loans, there would exist no Fronting Exposure (in the good faith determination of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of . Each Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note Base Rate Loan and must be repaid in full in Dollars within seven (7) days after its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the “Swing Loan Note”) substantially Revolving Credit Termination Date (without giving effect to any extensions of the type referred to in the form attached as Exhibit 2.4(aproviso to Section 12.1(b) heretohereof). Swing Loan Lender’s agreement to make Swing Loans under Within the limits set forth in the first sentence of this Agreement is cancelable at any time for any reason whatsoever and the making clause (a), amounts of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter repaid may be obligated to make Swing Loans in the futurereborrowed under this clause (a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy (or forward by electronic mail or similar means) to the contrary provided for hereinAdministrative Agent a duly completed request in substantially the form of Exhibit D, setting forth the requested amount and date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower as promptly as reasonably practicable on the date set forth in the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan (other than a Protective Advance) in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Lender that one or more of the applicable conditions precedent contained in Section 4.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 4.2 have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender may demand at any time that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (d) below, such Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) The Administrative Agent shall forward each demand referred to in clause (c) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. on any Business Day or any such notice or demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Sections 4.2 and 2.1 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Lender shall, before 11:00 a.m. on the Business Day next succeeding the date of such Lender’s receipt of such notice or after demand, make available to the Administrative Agent, in Same Day Funds in Dollars, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (e) below, be deemed to have made a Revolving Loan to the Borrower in the amount of such payment. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender.
(e) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 10.1(f), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (d) above, which participation shall be in a principal amount equal to such Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (d) above, in proportion Same Day Funds, an amount equal to its Revolving Commitment Percentagesuch Lender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(f) hereof. From and after the date, if any, date on which any Lender (i) is deemed to have made a Revolving Lender is required Loan pursuant to fund, and funds, its participation in clause (d) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (e) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender’s Ratable Portion of all payments of principal and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofd) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (e) above.
Appears in 2 contracts
Sources: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that shall make, in order to facilitate the administration of this AgreementDollars, Swing Loan Lender mayloans (each, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (a “Swing LoansLoan”) otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Revolving Credit Commitments from time to time after on any Business Day during the period from the Closing Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of at any time outstanding (together with the Maximum Swing Loan Advance Amount, provided that the aggregate outstanding aggregate principal amount of any other Loan made by the Swing Loans Loan Lender hereunder in its capacity as the Swing Loan Lender) not to exceed the Swing Loan Sublimit; provided, however, that at no time shall the Swing Loan Lender make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit; provided further that in the event that the Swing Loan Lender and the Revolving Advances at any one time outstanding Administrative Agent are not the same Person, then the Swing Loan Lender shall only make a Swing Loan after having given prior notice thereof to the Administrative Agent; provided further that the Swing Loan Lender shall not exceed an amount equal be required to make any Swing Loan to the lesser extent that such Swing Loan Lender reasonably believes that any Lender is a Defaulting Lender, unless after giving effect to the requested Swing Loans, there would exist no Fronting Exposure (in the good faith determination of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of . Each Swing Loan Lendershall be an ABR Loan and must be repaid in full in Dollars within seven (7) Swing Loans days after its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date (without giving effect to any extensions of the type referred to in Section 2.18 hereof unless the Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during has consented to such extension). Within the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially limits set forth in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under first sentence of this Agreement is cancelable at any time for any reason whatsoever and the making clause (a), amounts of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter repaid may be obligated to make Swing Loans in the futurereborrowed under this clause (a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy (or forward by electronic mail or similar means) to the contrary provided for hereinAdministrative Agent a duly completed request in substantially the form of Exhibit K, setting forth the requested amount and date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower as promptly as reasonably practicable on the date set forth in the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan (other than a Protective Advance) in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Lender that one or more of the applicable conditions precedent contained in Section 3.02 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.02 have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender may demand at any time, and shall demand on a least a weekly basis, that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (d) below, such Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) The Administrative Agent shall forward each demand referred to in clause (c) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. on any Business Day or any such notice or demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Sections 3.02 and 2.01 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Lender shall, before 11:00 a.m. on the Business Day next succeeding the date of such Lender’s receipt of such notice or after demand, make available to the Administrative Agent, in Same Day Funds in Dollars, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (e) below, be deemed to have made a Revolving Loan to the Borrower in the amount of such payment. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender.
(e) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 7.01(f), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (d) above, which participation shall be in a principal amount equal to such Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (d) above, in proportion Same Day Funds, an amount equal to its Revolving Commitment Percentagesuch Lender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bABR Loans.
(f) hereof. From and after the date, if any, date on which any Lender (i) is deemed to have made a Revolving Lender is required Loan pursuant to fund, and funds, its participation in clause (d) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (e) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender’s Ratable Portion of all payments of principal and interest and all proceeds of Collateral received by Agent the Swing Loan Lender on account of such Swing Loan other than those received from a Lender pursuant to clause (d) or (e) above.
(g) If the maturity date shall have occurred in respect of any tranche of Commitments at a time when another tranche or tranches of Commitments is or are in effect with a longer maturity date (each, a “Non-Expiring Credit Commitment” and, collectively, the “Non-Expiring Credit Commitments”), then with respect to each outstanding Swing Loan, on the earliest occurring maturity date such Swing LoanLoan shall be deemed reallocated to the tranche or tranches of the Non-Expiring Credit Commitments on a pro rata basis; provided that no to the extent that the amount of such reallocation would cause the Revolving Lender Credit Outstandings to exceed the aggregate amount of such Non-Expiring Credit Commitments, immediately prior to such reallocation the amount of Swing Loans to be reallocated equal to such excess shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditrepaid.
Appears in 2 contracts
Sources: Abl Credit Agreement (Mattress Firm Group Inc.), Abl Credit Agreement (Mattress Firm Group Inc.)
Swing Loans. As of the Restatement Date, PNC is the sole Lender hereunder. If at any time after the Restatement Date, one or more additional Lenders shall be party to this Agreement, from and after such date and so long as there shall be more than one Lender, the following provisions of this Section 2.4 (and provisions contained elsewhere in this Agreement with respect to Swing Loans and the Swing Loan Lender, including without limitation, Section 2.6 hereof) shall apply (it being understood and agreed that until such time and only during such times as there shall be more than one Lender, the provisions of this Agreement with respect to Swing Loans and the Swing Loan Lender shall have no application):
(a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount Amount, less Reserves established hereunder, less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) heretoand substance satisfactory to Agent and Swing Loan Lender. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Virco MFG Corporation), Revolving Credit and Security Agreement (Virco MFG Corporation)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that shall make, in order to facilitate the administration of this AgreementDollars, Swing Loan Lender mayloans (each, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (a “Swing LoansLoan”) otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Facility from time to time after on any Business Day during the Closing period from the Effective Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of at any time outstanding (together with the Maximum Swing Loan Advance Amount, provided that the aggregate outstanding aggregate principal amount of Swing Loans and any other Loan made by the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at Lender hereunder in its capacity as the option and election of Swing Loan Lender) not to exceed the Swing Loans and Loan Sublimit; provided, however, that at no time shall the Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “any Swing Loan Note”) substantially to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit; provided further that in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and event that the making of Swing Loans by Swing Loan Lender from time to time shall and the Administrative Agent are not create any duty or obligationthe same Person, or establish any course of conduct, pursuant to which then the Swing Loan Lender shall thereafter only make a Swing Loan after having given prior notice thereof to the Administrative Agent; provided further that the Swing Loan Lender shall not be obligated required to make any Swing Loan to the extent that such Swing Loan Lender reasonably believes that any Lender is a Defaulting Lender unless, after giving effect to the requested Swing Loan, there would exist no Fronting Exposure (in the good faith determination of the Swing Loan Lender and the Administrative Agent). Each Swing Loan shall be a Base Rate Loan and must be repaid in full in Dollars within seven (7) days after its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date (without giving effect to any extensions of the type referred to in the proviso to Section 12.1(b) hereof). Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans in the futurerepaid may be reborrowed under this clause (a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy (or forward by electronic mail or similar means) to the contrary provided for hereinAdministrative Agent a duly completed request in substantially the form of Exhibit D, setting forth the requested amount and date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower as promptly as reasonably practicable on the date set forth in the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan (other than a Protective Advance) in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Lender that one or more of the applicable conditions precedent contained in Section 4.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 4.2 have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender may demand at any time (and shall demand, not less frequently than weekly unless such Swing Loan is repaid in accordance with Section 2.3(a) hereof), that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (d) below, such Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) The Administrative Agent shall forward each demand referred to in clause (c) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. on any Business Day or any such notice or demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Sections 4.2 and 2.1 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Lender shall, before 11:00 a.m. on the Business Day next succeeding the date of such Lender’s receipt of such notice or after demand, make available to the Administrative Agent, in Same Day Funds in Dollars, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (e) below, be deemed to have made a Revolving Loan to the Borrower in the amount of such payment. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender.
(e) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 10.1(f), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (d) above, which participation shall be in a principal amount equal to such Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (d) above, in proportion Same Day Funds, an amount equal to its Revolving Commitment Percentagesuch Lender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(f) hereof. From and after the date, if any, date on which any Lender (i) is deemed to have made a Revolving Lender is required Loan pursuant to fund, and funds, its participation in clause (d) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (e) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender’s Ratable Portion of all payments of principal and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofd) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (e) above.
Appears in 2 contracts
Sources: Credit Agreement (JOANN Inc.), Credit Agreement (JOANN Inc.)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and each Swing Loan Lender agree that severally agrees to make loans (i) in order Dollars to facilitate the administration of this AgreementU.S. Borrower (each a "U.S. Swing Loan"), (ii) in Sterling or Euros to the U.K. Borrower (each a "U.K. Swing Loan Lender may, at its election Loan") and option made (iii) in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances Francs or Euros to the Swiss Borrower (“each a "Swiss Swing Loans”Loan") otherwise available to Borrowers as provided for in this Section 2.4 at any time or such Borrower under the Multi-Currency Facility from time to time after on any Business Day during the Closing period from the date hereof until the Revolving Credit Termination Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of at any time outstanding (together with the Maximum Swing Loan Advance Amount, provided that the aggregate outstanding aggregate principal amount of any other Swing Loan made by such Swing Loan Lender hereunder in its capacity as a Swing Loan Lender) not to exceed such Swing Loan Lender's Swing Loan Allocation of the Swing Loan Sublimit; provided, however, that at no time shall any Swing Loan Lender make a Swing Loan to the extent that, after giving effect to such Swing Loan, the Dollar Equivalent of the principal amount of the Swing Loans outstanding at such time would exceed the Swing Loan Sublimit or the aggregate Multi-Currency Outstandings would exceed the then effective aggregate Multi-Currency Commitments. Each U.S. Swing Loan shall be a Base Rate Loan and must be repaid in full within seven days after its making or, if sooner, upon any Dollar Borrowing hereunder. Each of the U.K. Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swiss Swing Loans shall be Domestic a Eurocurrency Rate Loans onlyLoan. Borrowers may borrow (at the option and election of Each Swing Loan Lendershall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making amounts of Swing Loans by Swing Loan Lender from time to time repaid may be reborrowed under this clause (a). Each Borrowing shall be in an aggregate amount of not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of less than the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reasonMinimum Currency Threshold.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such [PHI Group] Revolving Credit, Term Loan and Security Agreement Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De), Revolving Credit, Term Loan and Security Agreement (PHI Group, Inc./De)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto2.4. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.5(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.21) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Drilling Tools International Corp), Revolving Credit, Security and Guaranty Agreement (ROC Energy Acquisition Corp.)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have such request or deemed request treated the Borrower under the Revolving Credit Facility from time to time on any Business Day during the period from the Restatement Date until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to exceed the lesser of the Available Credit and the Swing Loan Sublimit. Each Swing Loan shall be a Base Rate Loan and shall be repaid no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall provide to the contrary provided for hereinSwing Loan Lender, not later than 1:00 p.m. (New York time) on the date of the proposed Borrowing, a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request) setting forth the requested amount and date of such Swing Loan (a “Swing Loan Request”). Subject to the terms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Revolving Credit Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), Lender may demand at any time that each Revolving Credit Lender shall be deemedpay to the Administrative Agent, without further action by any party hereto, to have unconditionally and irrevocably purchased from for the account of the Swing Loan Lender, without recourse in the manner provided in clause (d) below, such Revolving Credit Lender’s Ratable Portion of all or warrantya portion of the outstanding Swing Loans, an undivided interest which demand shall be made through the Administrative Agent, shall be in writing and participation shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) The Administrative Agent shall forward each demand referred to in clause (c) above to each Revolving Credit Lender on the day such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender demand is received by the Administrative Agent (except that any such demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or Agent mayany such demand received on a day that is not a Business Day shall not be required, at any timethe Administrative Agent’s sole discretion, require to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a notice specifying the amount of each Revolving Credit Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans demanded to fund be paid pursuant to such participations by means of a Settlement as provided for demand, and, notwithstanding whether or not the conditions precedent set forth in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment 3.2 (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Credit Agreement (Knology Inc), Credit Agreement (Knology Inc)
Swing Loans. (a) Subject to and upon the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, during the Commitment Period, each Swing Line Lender agrees to make a Swing Loan Lender may, at its election and option made or Swing Loans to the Borrower in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances an amount equal to one-half (“Swing Loans”1/2) available to Borrowers of the amount or amounts as provided for in this Section 2.4 at any time or the Borrower may from time to time after request; provided, that the Closing Date to, but Borrower shall not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum request any Swing Loan Advance Amountif, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of after giving effect thereto (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount aggregate outstanding principal amount of all Revolving Loans plus the Swing Line Exposure plus the LC Obligations then outstanding Letters of Credit plus the Permitted Non-Affiliate Loan Reserve would exceed the Total Revolving Loan Commitments then in effect or (ii) the Formula Swing Line Exposure would exceed the Maximum Swing Line Amount. All Each Swing Loans Loan shall bear interest at a per annum rate equal to the Federal Funds Effective Rate plus 195 basis points (for each day elapsed) and shall be Domestic Rate Loans only. Borrowers may borrow (at due and payable on the option and election of Swing Loan Lender), repay and re-borrow Maturity Date applicable thereto. The Borrower shall not request that more than one (at the option and election of 1) Swing Loan Lender) to each Swing Loans and Swing Loan Line Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable outstanding at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the futuretime.
(b) Upon either (i) On any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) Cleveland Banking Day, the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may electLine Lenders may, in its their sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything give notice to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders Banks and the Borrower that one or more of their outstanding Swing Loans shall be refinanced as a Revolving Loan; provided, that (i) each such notice shall be deemed to have been automatically given upon the applicable conditions occurrence of an Event of Default under Section 10.06 or 10.07 hereof or upon the exercise of any of the remedies provided in Section 11.01(b) or 11.02(b) hereof and (ii) no Swing Line Lender shall make such request without the other Swing Line Lender joining in such request. Such Revolving Loan initially shall bear interest based on the Base Rate Option. On the Cleveland Banking Day immediately following the date such notice has been given (or deemed given), the Borrower shall be deemed to have requested (the “Mandatory Request”) a Revolving Loan in the aggregate principal amount of the Swing Loans of each Swing Line Lender in accordance with Section 5.01 hereof (other than the requirement set forth in Section 8.2 hereof have 5.01(a)(i)). Each Bank agrees to make a Revolving Loan in an amount equal to its Pro rata share of such Revolving Loan on the date of the Mandatory Request, subject to no conditions precedent whatsoever. Each Bank acknowledges and irrevocably agrees that such Bank’s obligation to make a Revolving Loan when required by this Section 2.07(b) is absolute and unconditional and shall not been be affected by any circumstance whatsoever, including without limitation, the occurrence and continuance of a Possible Default or Event of Default or whether or not the agreements and conditions of Article V are then satisfied and that its payment to the Agent, for the respective accounts of the Swing Line Lenders, of the proceeds of such Revolving Loan shall be made without any offset, abatement, recoupment, counterclaim, withholding or the Revolving Commitments reduction whatsoever and whether or not such Bank’s Commitment shall have been terminated for reduced or terminated. The Borrower irrevocably authorizes and instructs the Agent to apply the proceeds of any reasonborrowing pursuant to this Section 2.07(b) to repay in full such Swing Loans.
(c) Upon If, for any reason, the making Agent is unable to or, in the opinion of the Agent, it is impracticable to, convert any Swing Loan to a Revolving Loan pursuant to the preceding Section 2.07(b), then on any day that a Swing Loan is outstanding (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanmaturity thereof), the Agent shall have the right to request that each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and Bank purchase a participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fundLoan, and funds, its participation in any Swing Loans purchased hereunder, the Agent shall promptly distribute notify each Bank thereof (by facsimile or telephone, confirmed in writing). Upon such notice, but without further action being necessary or required, each Swing Line Lender hereby agrees to grant to each Bank and each Bank hereby agrees to acquire from each Swing Line Lender, an individual participation interest in each Swing Loan in an amount equal to such Lender its Revolving Commitment Percentage Bank’s Pro rata share of all payments of the principal and interest and all proceeds of Collateral received by Agent in respect amount of such Swing Loan; . In consideration and in furtherance of the foregoing, each Bank hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Agent, for the benefit of each Swing Line Lender, such Bank’s Pro rata share of such Swing Loan. Each Bank acknowledges and agrees that no its obligation to acquire participations in Swing Loans pursuant to this Section 2.07(c) is absolute and unconditional, and shall not be affected by any circumstance whatsoever, including without limitation, the occurrence and continuance of a Possible Default or Event of Default or whether or not the agreements and conditions of Article V are then satisfied and that each such payment shall be made without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether or not such Bank’s Commitment shall have been reduced or terminated. Each Bank shall comply with its obligation under this Section 2.07(c) by wire transfer of immediately available funds, in the same manner as provided in Section 5.02 hereof with respect to Revolving Loans to be made by such Bank.
(d) On the Second Amendment Closing Date, the Borrower shall execute and deliver to each Swing Line Lender, a Swing Line Note with all blanks appropriately completed in conformity herewith. The Swing Line Note issued to each Swing Line Lender shall (i) be obligated in any event executed by the Borrower, (ii) be payable to make Revolving Advances in an amount in excess the order of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) such Swing Line Lender and dated as of the Maximum Undrawn Amount Second Amendment Closing Date, (iii) be in a stated principal amount equal to the Swing Line Commitment of all outstanding Letters such Swing Line Lender and payable in the principal amount of Creditthe Swing Loans evidenced thereby and (iv) be entitled to the benefits of this Agreement and the other Related Writings. The Swing Line Notes shall be subject to the terms of this Agreement.
(e) The proceeds of Swing Loans shall be used by the Borrower for general working capital purposes of the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Forest City Enterprises Inc), Credit Agreement (Forest City Enterprises Inc)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving the Lenders holding Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 2.14 at any time or from time to time after the Closing Date date hereof to, but not including, the last day of the TermMaturity Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances Facility Usage shall not at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 2.14 during the period between Settlement Dates. All Swing Loans Loans, if requested by the Swing Loan Lender, shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto2.14(a). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (ix) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (iiy) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender holding a Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders holding Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof2.10(d). From and after the date, if any, on which any Revolving Lender holding a Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender holding a Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.13) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP), Revolving Credit and Security Agreement
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have such request or deemed request treated the Borrower under the Revolving Credit Facility from time to time on any Business Day during the period from the Effective Date until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to exceed the lesser of the Available Credit and the Swing Loan Sublimit. Each Swing Loan shall be a Base Rate Loan and shall be repaid no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall provide to the contrary provided for hereinSwing Loan Lender, not later than 1:00 p.m. (New York time) on the date of the proposed Borrowing, a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request) setting forth the requested amount and date of such Swing Loan (a “Swing Loan Request”). Subject to the terms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Revolving Credit Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender may demand at any time that each Revolving Credit Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (d) below, such Revolving Credit Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) The Administrative Agent shall forward each demand referred to in clause (c) above to each Revolving Credit Lender on the day such demand is received by the Administrative Agent (except that any such demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required, at the Administrative Agent’s sole discretion, to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a notice specifying the amount of each Revolving Credit Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) and 2.1(a) (Revolving Credit Commitments) shall have been satisfied (which conditions precedent the Revolving Credit Lenders hereby irrevocably waive), each Revolving Credit Lender shall, before or after 11:00 a.m. (New York time) on the Business Day next succeeding the date of such Revolving Credit Lender’s receipt of such demand, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except as provided in clause (e) below, be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Revolving Credit Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(e) Upon the occurrence of a Default or an Event under Section 9.1(f) (Events of Default and regardless of whether a Settlement has been requested with respect to such Swing LoanDefault), each Revolving Credit Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Revolving Credit Lender pursuant to clause (d) above, which participation shall be in a principal amount equal to such Revolving Credit Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Revolving Credit Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (d) above, in proportion immediately available funds, an amount equal to its such Revolving Commitment PercentageCredit Lender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Revolving Credit Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Revolving Credit Lender together with interest accrued from such date at the Federal Funds Rate for the first Business Day after such payment was due and, thereafter, at any time, require the Revolving Lenders rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(f) hereof. From and after the date, if any, date on which any Revolving Credit Lender (i) is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (d) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (e) above, Agent the Swing Loan Lender shall promptly distribute to such Revolving Credit Lender its such Revolving Commitment Percentage Credit Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Loan other than those received from a Revolving Credit Lender pursuant to clause (d) or (e) above.
(g) Notwithstanding anything to the contrary in this Section 2.3 or elsewhere in this Agreement, the Swing Loan Lender shall not be obligated in any event to make any Swing Loan at a time when a Revolving Advances Credit Lender is a Non-Funding Lender unless the Swing Loan Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Loan Lender’s risk with respect to the Non-Funding Lender’s or Non-Funding Lenders’ participation in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) such Swing Loans, including by cash collateralizing such Non-Funding Lender’s or Non-Funding Lenders’ Ratable Portion of the Maximum Undrawn Amount of all outstanding Letters of CreditSwing Loans.
Appears in 2 contracts
Sources: Credit Agreement (Knology Inc), Credit Agreement (Knology Inc)
Swing Loans. (a) Subject to and upon the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, during the Commitment Period, each Swing Line Lender agrees to make a Swing Loan Lender may, at its election and option made or Swing Loans to the Borrower in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances an amount equal to one-half (“Swing Loans”1/2) available to Borrowers of the amount or amounts as provided for in this Section 2.4 at any time or the Borrower may from time to time after request; provided, that the Closing Date to, but Borrower shall not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum request any Swing Loan Advance Amountif, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of after giving effect thereto (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount aggregate outstanding principal amount of all Revolving Loans plus the Swing Line Exposure plus the LC Obligations then outstanding Letters of Credit plus the Permitted Non-Affiliate Loan Reserve would exceed the Total Revolving Loan Commitments then in effect or (ii) the Formula Swing Line Exposure would exceed the Maximum Swing Line Amount. All Each Swing Loans Loan shall bear interest at a per annum rate equal to the Federal Funds Effective Rate plus 195 basis points (for each day elapsed) and shall be Domestic Rate Loans only. Borrowers may borrow (at due and payable on the option and election of Swing Loan Lender), repay and re-borrow Maturity Date applicable thereto. The Borrower shall not request that more than one (at the option and election of 1) Swing Loan Lender) to each Swing Loans and Swing Loan Line Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable outstanding at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the futuretime.
(b) Upon either (i) On any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) Cleveland Banking Day, the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may electLine Lenders may, in its their sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything give notice to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders Banks and the Borrower that one or more of their outstanding Swing Loans shall be refinanced as a Revolving Loan; provided, that (i) each such notice shall be deemed to have been automatically given upon the applicable conditions occurrence of an Event of Default under Section 10.06 or 10.07 hereof or upon the exercise of any of the remedies provided in Section 11.01(b) or 11.02(b) hereof and (ii) no Swing Line Lender shall make such request without the other Swing Line Lender joining in such request. Such Revolving Loan initially shall bear interest based on the Base Rate Option. On the Cleveland Banking Day immediately following the date such notice has been given (or deemed given), the Borrower shall be deemed to have requested (the “Mandatory Request”) a Revolving Loan in the aggregate principal amount of the Swing Loans of each Swing Line Lender in accordance with Section 5.01 hereof (other than the requirement set forth in Section 8.2 hereof have 5.01(a)(i)). Each Bank agrees to make a Revolving Loan in an amount equal to its Pro rata share of such Revolving Loan on the date of the Mandatory Request, subject to no conditions precedent whatsoever. Each Bank acknowledges and irrevocably agrees that such Bank’s obligation to make a Revolving Loan when required by this Section 2.07(b) is absolute and unconditional and shall not been be affected by any circumstance whatsoever, including without limitation, the occurrence and continuance of a Possible Default or Event of Default or whether or not the agreements and conditions of Article V are then satisfied and that its payment to the Agent, for the respective accounts of the Swing Line Lenders, of the proceeds of such Revolving Loan shall be made without any offset, abatement, recoupment, counterclaim, withholding or the Revolving Commitments reduction whatsoever and whether or not such Bank’s Commitment shall have been terminated for reduced or terminated. The Borrower irrevocably authorizes and instructs the Agent to apply the proceeds of any reasonborrowing pursuant to this Section 2.07(b) to repay in full such Swing Loans.
(c) Upon If, for any reason, the making Agent is unable to or, in the opinion of the Agent, it is impracticable to, convert any Swing Loan to a Revolving Loan pursuant to the preceding Section 2.07(b), then on any day that a Swing Loan is outstanding (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanmaturity thereof), the Agent shall have the right to request that each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and Bank purchase a participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fundLoan, and funds, its participation in any Swing Loans purchased hereunder, the Agent shall promptly distribute notify each Bank thereof (by facsimile or telephone, confirmed in writing). Upon such notice, but without further action being necessary or required, each Swing Line Lender hereby agrees to grant to each Bank and each Bank hereby agrees to acquire from each Swing Line Lender, an individual participation interest in each Swing Loan in an amount equal to such Lender its Revolving Commitment Percentage Bank’s Pro rata share of all payments of the principal and interest and all proceeds of Collateral received by Agent in respect amount of such Swing Loan; . In consideration and in furtherance of the foregoing, each Bank hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Agent, for the benefit of each Swing Line Lender, such Bank’s Pro rata share of such Swing Loan. Each Bank acknowledges and agrees that no Revolving Lender its obligation to acquire participations in Swing Loans pursuant to this Section 2.07(c) is absolute and unconditional, and shall not be affected by any circumstance whatsoever, including without limitation, the occurrence and continuance of a Possible Default or Event of Default or whether or not the agreements and conditions of Article V are then satisfied and that each such payment shall be obligated in made without any event to make Revolving Advances in an amount in excess of offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether or not such Bank’s Commitment shall have been reduced or terminated. Each Bank shall comply with its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations obligation under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.this
Appears in 2 contracts
Sources: Credit Agreement (Forest City Enterprises Inc), Credit Agreement (Forest City Enterprises Inc)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, the Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount Loan Amount, less the Maximum Undrawn Amount of all outstanding Letters of Credit Credit, less the outstanding balance of any Fuel Taxes that are due and owing or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (ix) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (iiy) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.20(c) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Green Plains Inc.), Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount Amount, less Reserves established hereunder, less the Maximum Undrawn Amount of all outstanding Letters of Credit Credit, or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement and Guaranty (Viant Technology Inc.), Revolving Credit and Security Agreement (Viant Technology Inc.)
Swing Loans. (a) Subject to During the term of this Agreement, the Lenders agree, on the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order make advances to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available Borrower pursuant to Borrowers as provided for in this Section 2.4 at any time or from time to time after in amounts such that (i) the Closing Date to, but aggregate of such advance and amount of Swing Loans theretofore advanced and still outstanding does not including, at any time exceed the last day Swing Loan Commitment and (ii) the amount of such advance does not exceed the Term, Loan Availability. Each advance under this Section shall be in an aggregate principal amount up of $1,000,000 or a larger multiple of $100,000 (except that any such advance may be in the aggregate available amount of Swing Loans determined in accordance with the immediately preceding sentence). With the foregoing limits, Borrower may borrow under this Section, repay or, to but not the extent permitted by Section 1.3, prepay Swing Loans and reborrow under this Section at any time during the term of this Agreement.
(b) The Agent shall, on behalf of Borrower (which hereby irrevocably directs the Agent to act on its behalf), on notice given by Agent no later than 1:00 p.m. (Central time) on the Business Day immediately following the funding of any Swing Loan, request each Lender to make, and each Lender hereby agrees to make, an advance, in excess an amount (with respect to each Lender, its “Swing Loan Refund Amount”) equal to such Lender’s Commitment Percentage of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of the Swing Loans (the “Refunded Swing Loans”) outstanding on the date of such notice, to repay the Swing Lender. Unless any of the events described in Section 6.1(J) with respect to Borrower shall have occurred and be continuing (in which case the Revolving procedures of Section 3.5(c) shall apply), each Lender shall make such advance to Agent at Agent’s office in immediately available funds, not later than 1:00 p.m. (Central time), on the fifth Business Day immediately following the date of such notice. Agent shall immediately apply such proceeds to repay Refunded Swing Loans. Effective on the day such advances are made, the portion of the Swing Loans so paid shall no longer be outstanding as Swing Loans, shall no longer be due as Swing Loans under the Swing Loan Note held by the Swing Lender, and shall be due as Advances at any under the respective Notes issued to the Lenders. Borrower authorizes the Agent to charge Borrower’s accounts with Agent (up to the amount available in each such accounts) in order to immediately pay the amount of such Refunded Swing Loans to the extent amounts received from the Lenders are not sufficient to repay in full such Refunded Swing Loans.
(c) If, prior to the time advances would have otherwise been made by Lenders pursuant to Section 3.5(b), one time outstanding of the events described in Section 6.1(J) with respect to the Borrower shall not exceed have occurred and be continuing, each Lender shall, on the date such advances were to have been made pursuant to the notice referred to in Section 3.5(b) (the “Refunding Date”), purchase an undivided participating interest in the Swing Loans in an amount equal to such Lender’s Swing Loan Refund Amount. On the lesser Refunding Date, each Lender shall transfer to the Agent, in immediately available funds, such Lender’s Swing Loan Refund Amount, and upon receipt thereof, the Agent shall deliver to such Lender a Swing Loan participation certificate dated the date of Agent’s receipt of such funds and in the Swing Loan Refund Amount of such Lender.
(d) Whenever, at any time after the Agent has received from any Lender such Lender’s Swing Loan Refund Amount pursuant to Section 3.5(c), the Agent receives any payment on account of the Swing Loans in which the Lenders have purchased participations pursuant to said Section 3.5(c), the Agent will promptly distribute to each such Lender its ratable share (determined on the basis of the Swing Loan Refund Amounts of all of the Lenders) of such payment (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 Agent is required to be returned, such Lender will return to the Agent any portion thereof previously distributed to it by the Agent.
(e) Each Lender’s obligation to make an advance under its Revolving Commitment as provided in Section 3.5(b) or to purchase a participating interest pursuant to Section 3.5(c) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender, Borrower or any other Person may have against the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit Agent or any other Person, (ii) the Formula Amount. All occurrence or continuance of an Event of Default, the termination or reduction of the Revolving Commitments or the non-satisfaction of any condition precedent to the making of any advance of the Loans, (iii) any adverse change in the condition (financial or otherwise) of Borrower or any other Person, (iv) any breach of this Agreement by Borrower, any other Lender or any other Person or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(f) For purposes of Article III, Advances of Swing Loans shall be Domestic deemed to be Loan Rate Loans only. Borrowers may borrow Advances.
(at g) If not sooner paid in accordance with the option and election of Swing Loan Lender)terms hereof, repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be due and payable, in full, upon the earlier of five (5) Business Days after said amounts are advanced or the Maturity Date (the “Swing Loan Maturity Date”).
(h) Any Swing Loan made by the Swing Lender shall be evidenced by by, and repaid with interest in accordance with, a secured promissory note of Borrower in the form of Exhibit G duly completed and executed by Borrower, payable to the Swing Lender (such note, as the same may hereafter be amended, modified, extended , severed, assigned, substituted, renewed or restated from time to time, the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future).
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Saul Centers Inc), Revolving Credit Agreement (Saul Centers Inc)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“"Swing Loans”") available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the sum of the aggregate Dollar Equivalent of the Maximum Undrawn Amount of all outstanding Letters of Credit, the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula AmountAvailability at such time. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “"Swing Loan Note”") substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s 's agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if (x) Borrowing Agent has requested a Term SOFR Rate Loan or (y) Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Dollar Equivalent of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Great Lakes Dredge & Dock CORP), Revolving Credit and Security Agreement (Great Lakes Dredge & Dock CORP)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers the Borrower as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount Amount, less Reserves established hereunder, less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers The Borrower may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent the Borrower for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers the Borrower for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers the Borrower as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Nn Inc), Revolving Credit and Security Agreement (Nn Inc)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make loans (each a "Swing Loan") otherwise available to have the Borrower under the Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate principal amount of any other Loans made by the Swing Loan Lender hereunder in its capacity as Lender or Swing Loan Lender) not to exceed the lesser of $5,000,000 and the Swing Loan Lender's Ratable Portion of the Available Credit; provided, however, that the Swing Loan Lender shall not make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. The Swing Loan Lender shall be entitled to rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within seven days of its making or, if sooner, upon any Revolving Credit Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy (or forward by electronic mail or similar means) to the contrary provided for hereinAdministrative Agent a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount and date of the Swing Loan (a "Swing Loan Request"), to be received by the Administrative Agent not later than 2:00 p.m. (New York time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (which writing may be a telecopy or electronic mail) weekly, by no later than 10:00 a.m. (New York time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (e) below, such Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender's Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Lender shall, before or after 11:00 a.m. (New York time) on the Business Day next succeeding the date of such Lender's receipt of such written statement, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event under Section 9.1(g) (Events of Default and regardless of whether a Settlement has been requested with respect to such Swing LoanDefault), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender's Ratable Portion of such Swing Loan. If such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover such amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Lender (i) is deemed to have made a Revolving Lender is required Loan pursuant to fund, and funds, its participation in clause (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Sources: Credit Agreement (Aviall Inc)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoeverdiscretion, make swing loan advances loans (each a “Swing LoansLoan”) otherwise available to the Borrowers as provided for in this Section 2.4 at any time or from time to time after on any Business Day during the Closing period from the Effective Date to, but not including, until the last day of the Term, Revolving Termination Date in an aggregate principal amount up outstanding at any time not to but not exceed $50,000,000.00; provided, however, that, in no event, shall any Swing Loan be made in excess of the Maximum Available Credit. Each Swing Loan Advance Amountshall be a Base Rate Loan and shall in any event mature no later than the Revolving Termination Date. Within the limits set forth in the first sentence of this clause (a), provided amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request a Swing Loan, a Borrower shall telecopy (or, if consented to by the Swing Loan Lender and the Revolving and LC Administrative Agent, forward by electronic mail or similar means) to the Swing Loan Lender (with a copy to the Revolving and LC Administrative Agent) a duly completed request in substantially the form of Exhibit D (or shall make such request by telephone and promptly thereafter forward a written confirmation containing the same information), setting forth the requested amount and date of the Swing Loan (a “Swing Loan Request”), to be received by the Swing Loan Lender not later than 3:00 p.m. (New York time) on the day of the proposed borrowing. Subject to the terms of this Agreement, the Swing Loan Lender may make a Swing Loan available to the requesting Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Revolving and LC Administrative Agent or any Revolving Lender that one or more of the outstanding conditions precedent contained in Section 3.3 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 3.3 have been satisfied in connection with the making of any Swing Loan.
(c) The Swing Loan Lender shall notify the Revolving and LC Administrative Agent in writing (which writing may be a telecopy or, if agreed to by the Revolving and LC Administrative Agent, electronic mail) weekly, by no later than 11:00 a.m. (New York time) on the first Business Day of each week, of the aggregate principal amount of Swing Loans and then outstanding.
(d) Each Revolving Lender shall pay to the Revolving Advances at any one time outstanding shall not exceed an amount equal to and LC Administrative Agent, for the lesser account of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at in the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as manner provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note clause (the “Swing Loan Note”e) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan below, such Revolving Lender’s agreement to make Ratable Portion of the outstanding Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the futureLoans.
(be) Upon either The Revolving and LC Administrative Agent shall forward each notice referred to in clause (ic) above to each Revolving Lender on the day such notice or such demand is received by the Revolving and LC Administrative Agent (except that any request such notice or demand received by Borrowing the Revolving and LC Administrative Agent for a Revolving Advance made pursuant after 4:00 p.m. (New York time) on any Business Day shall not be required to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant be forwarded to the provisions Revolving Lenders by the Revolving and LC Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Revolving and LC Administrative Agent specifying the amount of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more each Revolving Lender’s Ratable Portion of the applicable aggregate principal amount of the Swing Loans stated to be outstanding in such notice, and, notwithstanding whether or not the conditions precedent set forth in Section 8.2 hereof 3.3 shall have not been satisfied or (which conditions precedent the Revolving Commitments Lenders hereby irrevocably waive), each Revolving Lender shall, before 11:00 a.m. (New York time) on the Business Day next succeeding the date of such Revolving Lender’s receipt of such written statement, make available to the Revolving and LC Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement as its Ratable Portion of the aggregate principal amount of the Swing Loans outstanding. If and to the extent that a Revolving Lender shall not have been terminated so made such Ratable Portion available to the Revolving and LC Administrative Agent for any reasonthe account of the Swing Loan Lender, such Revolving Lender on the one hand and the Borrowers jointly and severally on the other agree to repay to the Revolving and LC Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrowers until the date such amount is repaid to the Revolving and LC Administrative Agent, at (i) in the case of the Borrowers, the interest rate applicable at the time to overdue Swing Loans and (ii) in the case of such Revolving Lender, the Federal Funds Rate for the first Business Day and thereafter at the interest rate applicable at the time to overdue Swing Loans. Upon such payment by a Revolving Lender, such Revolving Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan that is a Base Rate Loan to the applicable Borrower. The Revolving and LC Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender.
(cf) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 9.1(f), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan in a principal amount equal to such Revolving Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Revolving Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its such Revolving Commitment PercentageLender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Revolving Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Revolving Lender together with interest accrued from such date at any time, require the Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to Base Rate Loans for Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereofLoans. From and after the date, if any, date on which any Revolving Lender (i) is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) acquires an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Revolving Lender its such Revolving Commitment Percentage Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Loan other than those received from a Revolving Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers Borrower as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the TermMaturity Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances Loans at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Loan Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula AmountCredit. All Swing Loans shall be Domestic Base Rate Loans only. Borrowers Borrower may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent Borrower for a Revolving Advance Loan made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers Borrower for a Revolving Advance Loan pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers Borrower as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof 3.2 of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment PercentagePro Rata Share thereof. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage Pro Rata Share of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances Loans in an amount in excess of the amount of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.9) of with respect to the outstanding Swing Loans and the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“"Swing Loans”") available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be at a rate to be agreed upon by the Swing Loan Lender and the Borrowers, which rate shall either be (A) Domestic Rate Loans onlyLoans, or (B) Daily Simple SOFR Rate Loans. Borrowers 268323208 may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “"Swing Loan Note”") substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s 's agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Ati Inc)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“"Swing Loans”") available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be at a rate to be agreed upon by the Swing Loan 222233776 Lender and the Borrowers, which rate shall either be (A) Domestic Rate Loans onlyLoans, or (B) Daily LIBOR Rate Loans. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “"Swing Loan Note”") substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s 's agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Allegheny Technologies Inc)
Swing Loans. (a) On the terms and subject to the conditions contained in this Agreement, (i) the Dollar Swing Lender may, in its sole discretion, make loans denominated in Dollars to any Primary Revolving Borrower (a “Dollar Swing Loan”) and (ii) the Euro Swing Lender may, in its sole discretion, make loans denominated in Euros to any Primary Revolving Borrower (a “Euro Swing Loan” and together with the Dollar Swing Loans, the “Swing Loans”), in each case, under the Primary Revolving Credit Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date; provided, however, that at no time shall the Dollar Equivalent of the aggregate principal amount at any time outstanding of all such Swing Loans exceed the Swing Loan Sublimit. Each Swing Loan must be repaid in full within seven days after its making or, if sooner, upon any Revolving Credit Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a). Each Borrowing shall be in an aggregate amount of not less than the applicable Minimum Currency Threshold.
(b) In order to request a Swing Loan, the applicable Primary Revolving Borrower shall telecopy (or forward by electronic mail or similar means) to the Administrative Agent a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount, currency and date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. (New York time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the applicable Swing Lender of the details of the requested Swing Loan. Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, the applicable Swing Lender may make a Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for the Administrative Agent and, in this Section 2.4 at any time or from time to time after the Closing Date to, but not includingturn, the last day Administrative Agent shall make such amounts available to such Primary Revolving Borrower on the date of the Termrelevant Swing Loan Request. No Swing Lender shall Credit Agreement Affiliated Computer Services, Inc. make any Swing Loan in an aggregate principal amount up to but not in excess the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Revolving Lender that one or more of the Maximum conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. No Swing Lender shall otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan Advance Amountand Letter of Credit) have been satisfied in connection with the making of any Swing Loan.
(c) Each Swing Lender shall notify the Administrative Agent in writing (which writing may be a telecopy or electronic mail) weekly, provided that by no later than 10:00 a.m. (New York time) on the first Business Day of each week, of the then outstanding aggregate principal amount of Swing Loans and the Revolving Advances made by such Swing Lender.
(d) Each Swing Lender may demand at any one time that each Primary Revolving Lender pay to the Administrative Agent, for the account of such Swing Lender, in the manner provided in clause (e) below, such Primary Revolving Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans advanced by such Swing Lender, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Primary Revolving Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not exceed an amount equal be required to be forwarded to the lesser of (i) Primary Revolving Lenders by the Maximum Revolving Advance Amount less Administrative Agent until the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lendernext succeeding Business Day), repay and re-borrow (at together with a statement prepared by the option and election Administrative Agent specifying the amount of Swing Loan each Primary Revolving Lender) ’s Ratable Portion of the aggregate principal amount of the Dollar Swing Loans and Swing Loan Lender may make Euro Swing Loans as provided stated to be outstanding in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall such notice or demanded to be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, paid pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in such demand, and, notwithstanding whether or not the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
3.2 (c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (Affiliated Computer Services Inc)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans (“each a "Swing Loans”Loan") otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Facility from time to time after on any Business Day during the Closing period from the date hereof until the Revolving Credit Termination Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of at any time outstanding (together with the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and any other loans made by the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at Lender hereunder in its capacity as a Lender or the option and election of Swing Loan Lender) Swing Loans at any time not to exceed the lesser of $20,000,000 and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable 's Ratable Portion of the Available Credit at any time for any reason whatsoever and such time; provided, however, that the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter not make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. The Swing Loan Lender shall be obligated entitled to make rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within seven days of its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this Section 2.3(a) amounts of Swing Loans in the futurerepaid may be reborrowed under this Section 2.3(a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy to the contrary provided for hereinAdministrative Agent a duly completed request setting forth the date, the requested amount and date of the Swing Loan (a "Swing Loan Request"), to be received by the Administrative Agent not later than 12:00 p.m. (New York City time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent which will make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from any Lender or by Required Lenders the Administrative Agent (if a Person other than the Swing Loan Lender) that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied or waived. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 (Conditions Precedent to Each Loan and Letter of Credit) hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon The Swing Loan Lender shall notify the making Administrative Agent in writing (which may be by telecopy) weekly, by no later than 10:00 a.m. (New York City time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time during the continuance of an Event of Default that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in subsection (e) below, such Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York City time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender's Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive) provided that the Swing Loan Lender has not received the notice referred to in the penultimate sentence of clause (b) above prior to any such Swing Loan (whether and the condition referred to in such notice has not been waived in accordance with this Agreement), each Lender shall, before or after 11:00 a.m. (New York City time) on the Business Day next succeeding the date of such Lender's receipt of such written demand, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such demand. Upon such payment by a Lender, such Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 9.1(f), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender's Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Lender is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving the Lenders holding Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 2.14 at any time or from time to time after the Closing Date to, but not including, the last day of the TermMaturity Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances Facility Usage shall not at any one time outstanding shall not exceed an amount equal to the lesser Line Cap (other than as a result of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amountany Protective Advance). All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 2.14 during the period between Settlement Dates. All Swing Loans Loans, if requested by the Swing Loan Lender, shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto2.14(a). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (ix) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.or
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have such request or deemed request treated the Borrower under the Revolving Credit Facility from time to time on any Business Day during the period from the Original Effective Date until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to exceed the lesser of the Available Credit and the Swing Loan Sublimit. Each Swing Loan shall be a Base Rate Loan and shall be repaid no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall provide to the contrary provided for hereinSwing Loan Lender a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount and date of such Swing Loan (a “Swing Loan Request”). Subject to the terms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Revolving Credit Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender may demand at any time that each Revolving Credit Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (e) below, such Revolving Credit Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) The Administrative Agent shall forward each demand referred to in clause (c) above to each Revolving Credit Lender on the day such demand is received by the Administrative Agent (except that any such demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a notice specifying the amount of each Revolving Credit Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) and 2.1(a) (Revolving Credit Commitments) shall have been satisfied (which conditions precedent the Revolving Credit Lenders hereby irrevocably waive), each Revolving Credit Lender shall, before or after 11:00 a.m. (New York time) on the Business Day next succeeding the date of such Revolving Credit Lender’s receipt of such demand, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Revolving Credit Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand. AMENDED AND RESTATED CREDIT AGREEMENT KNOLOGY, INC.
(e) Upon the occurrence of a Default or an Event under Section 9.1(f) (Events of Default and regardless of whether a Settlement has been requested with respect to such Swing LoanDefault), each Revolving Credit Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Revolving Credit Lender pursuant to clause (c) above, which participation shall be in a principal amount equal to such Revolving Credit Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Revolving Credit Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (c) above, in proportion immediately available funds, an amount equal to its such Revolving Commitment PercentageCredit Lender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Revolving Credit Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Revolving Credit Lender together with interest accrued from such date at the Federal Funds Rate for the first Business Day after such payment was due and, thereafter, at any time, require the Revolving Lenders rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(f) hereof. From and after the date, if any, date on which any Revolving Credit Lender (i) is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Revolving Credit Lender its such Revolving Commitment Percentage Credit Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Loan other than those received from a Revolving Credit Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Sources: Credit Agreement (Knology Inc)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, the Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount Loan Amount, less the Maximum Undrawn Amount of all outstanding Letters of Credit Credit, less the outstanding balance of any Fuel Taxes that are due and owing or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (ix) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (iiy) the occurrence of any deemed request by Borrowers for a FILO Advance or Revolving Advance Advance, as applicable, pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.20(c) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Green Plains Inc.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Revolving Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances denominated in U.S. Dollars (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount Amount, less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) 2.4 hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Revolving Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 2.22 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Williams Industrial Services Group Inc.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, during the Commitment Period, Agent shall make a Swing Loan Lender may, at its election and option made or Swing Loans to Borrower in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers such amount or amounts as provided for in this Section 2.4 at any time or Borrower may from time to time request; provided that Borrower shall not request any Swing Loan under the Swing Line if, after giving effect thereto, (a) the Revolving Credit Exposure would exceed the aggregate amount of the Revolving Credit Commitments, or (b) the aggregate outstanding principal amount of all Swing Loans would exceed the Swing Line Commitment. Each Swing Loan shall be due and payable on the Swing Loan Maturity Date applicable thereto. Borrower shall pay interest, for the sole benefit of Agent (and any Bank that has purchased a participation in such Swing Loan pursuant to this Section 2.1B), on the unpaid principal amount of each Swing Loan outstanding from time to time from the date thereof until paid at the Negotiated Rate applicable to such Swing Loan. Interest on each Swing Loan shall be payable on the Swing Loan Maturity Date applicable thereto. Each Swing Loan shall bear interest for a minimum of one (1) day. The obligation of Borrower to repay the Swing Loans and to pay interest thereon shall be evidenced by a Swing Line Note of Borrower substantially in the form of Exhibit B hereto, dated the Closing Date toDate, but not includingand payable to the order of Agent in the principal amount of the Swing Loan Commitment, or, if less, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate unpaid principal amount of Swing Loans made hereunder by Agent. Subject to the provisions of this Agreement, Borrower shall be entitled under this Section 2.1B to borrow funds, repay the same in whole or in part and the Revolving Advances reborrow hereunder at any one time and from time to time during the Commitment Period. On any day when a Swing Loan is outstanding (whether before or after the maturity thereof), Agent shall not exceed have the right to request that each Bank (other than a Canadian Bank and, on and after the Activation Date, only a Domestic Bank) purchase a participation in such Swing Loan, and Agent shall promptly notify each Bank (other than a Canadian Bank and, on and after the Activation Date, only a Domestic Bank) thereof (by facsimile or telephone, confirmed in writing). Upon such notice, but without further action, Agent hereby agrees to grant to each Bank (other than a Canadian Bank and, on and after the Activation Date, only a Domestic Bank), and each Bank (other than a Canadian Bank and, on and after the Activation Date, only a Domestic Bank) hereby agrees to acquire from Agent, an undivided participation interest in such Swing Loan in an amount equal to such Bank's Commitment Percentage or Revised Commitment Percentage, as then applicable, of the lesser aggregate principal amount of such Swing Loan. In consideration and in furtherance of the foregoing, each Bank (iother than a Canadian Bank and, on and after the Activation Date, only a Domestic Bank) hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to Agent, for its sole account, such Bank's ratable share of such Swing Loan (determined in accordance with such Bank's Commitment Percentage or Revised Commitment Percentage, as then applicable). Each Bank (other than a Canadian Bank and, on and after the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (iiActivation Date, only a Domestic Bank) the Formula Amount. All acknowledges and agrees that its obligation to acquire participations in Swing Loans pursuant to this Section 2.1B is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, the occurrence and continuance of an Unmatured Event of Default or an Event of Default, and that each such payment shall be made without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether or not such Bank's Revolving Credit Commitment shall have been reduced or terminated. Each Bank (other than a Canadian Bank and, on and after the Activation Date, only a Domestic Rate Loans only. Borrowers may borrow (at Bank) shall comply with its obligation under this Section 2.1B by wire transfer of immediately available funds, in the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans same manner as provided in this Section 2.4 during the period between Settlement Dates2.2(b) with respect to Revolving Loans to be made by such Bank. All Swing Loans shall be evidenced If Agent so elects, by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement giving notice to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever Borrower and the making of Swing Loans by Swing Loan Lender from time to time Banks (other than the Canadian Banks and, on and after the Activation Date, only the Domestic Banks), Borrower agrees that Agent shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in have the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may electright, in its sole discretion, to have such request or deemed request treated require that any Swing Loan be refinanced as a request for Revolving Loan. Such Revolving Loan shall be a Swing LoanBase Rate Loan unless and until converted by Borrower to a LIBOR Loan pursuant to Sections 2.1A and 2.2 hereof. Upon receipt of such notice by Borrower, and may advance same Borrower shall be deemed on such day funds to Borrowers as have requested a Swing Loan; provided that notwithstanding anything to Revolving Loan in the contrary provided for herein, principal amount of the Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
accordance with Sections 2.1A and 2.2 hereof. Each Bank (c) Upon the making of other than a Swing Loan (whether before or Canadian Bank and, on and after the Activation Date, only a Domestic Bank) agrees to make a Revolving Loan on the date of such notice, subject to no conditions precedent whatsoever. Each Bank (other than a Canadian Bank and, on and after the Activation Date, only a Domestic Bank) acknowledges and agrees that such Bank's obligation to make a Revolving Loan pursuant to Section 2.1A when required by this Section 2.1B is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, the occurrence and continuance of a Default or an Unmatured Event of Default or Event of Default, and regardless that its payment to Agent, for the account of Agent, of the proceeds of such Revolving Loan shall be made without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether a Settlement has or not such Bank's Revolving Credit Commitment shall have been requested with respect reduced or terminated. Borrower irrevocably authorizes and instructs Agent to apply the proceeds of any borrowing pursuant to this paragraph to repay in full such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (Applied Industrial Technologies Inc)
Swing Loans. (aA) Subject In addition to the terms and conditions set forth in this Agreementforegoing, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date tobut before the Maturity Date, but not including, upon the last day request of the TermBorrower, if the applicable conditions precedent in Article V have been satisfied and if there is no Defaulting Lender (unless the Swing Loan Lender has entered into arrangements (which may include the delivery of cash collateral) with the Borrower or such Defaulting Lender which are satisfactory to the Swing Loan Lender to eliminate the Swing Loan Lender’s Fronting Exposure (after giving effect to Section 4.11(a)(iii)) with respect to any such Defaulting Lender), make Swing Loans to the Borrower in an aggregate principal amount up to but at any time outstanding not exceeding $20,000,000; provided that, immediately after such Swing Loan is made, the conditions set forth in excess Section 2.1(b) shall have been satisfied. Except for calculation of the Maximum Commitment Fee as set forth in the definition thereof, Swing Loans shall not be considered a utilization of the Revolving Credit Commitment of the Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at Lender or any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amountother Lender hereunder. All Swing Loans shall be Domestic made as Base Rate Loans only. Borrowers may borrow or as LIBOR Index Loans; provided, however, that (A) the entire principal balance of the Swing Loans shall at all times bear interest as either a LIBOR Index Loan or a Base Rate Loan; (B) while any Swing Loan is outstanding all subsequent Swing Loans must bear interest at the option and election of same rate as the Swing Loans then outstanding; (C) the Borrower may not convert any outstanding Swing Loans from Base Rate Loans to LIBOR Index Loans, or vice versa; (D) no Swing Loan Lender), repay shall constitute a LIBOR Index Loan for more than ten (10) succeeding Business Days; and re-borrow (at the option and election of E) if any Swing Loan Lenderremains outstanding for more than ten (10) Business Days as a LIBOR Index Loan, then the entire principal balance of the Swing Loans shall, automatically and Swing without notice to Borrower or any other Person, convert to a Base Rate Loan Lender may make Swing Loans and, thereafter, bear interest as provided in this Section 2.4 during the period between Settlement Dates. All a Base Rate Loan.
(B) Swing Loans shall be evidenced refunded by a secured promissory note (the “Swing Loan Note”) substantially in Lenders on demand by the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement . Such refundings shall be made by the Lenders in accordance with their respective Revolving Credit Commitment Percentages and shall thereafter be reflected as Revolving Loans of the Lenders on the books and records of the Agent. Each Lender shall fund its respective Revolving Credit Commitment Percentage of Revolving Loans as required to make repay Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and outstanding to the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which upon demand by the Swing Loan Lender shall thereafter be obligated but in no event later than 1:00 p.m. on the next succeeding Business Day after such demand is made. No Lender’s obligation to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for fund its respective Revolving Credit Commitment Percentage of a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in shall be affected by any other Lender’s failure to fund its sole discretion, to have such request or deemed request treated as a request for Revolving Credit Commitment Percentage of a Swing Loan, and may advance same day funds to Borrowers nor shall any Lender’s Revolving Credit Commitment Percentage be increased as a Swing Loan; provided that notwithstanding anything result of any such failure of any other Revolving Credit Lender to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to fund its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Credit Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.a Swing
Appears in 1 contract
Sources: Senior Secured Credit Facility (TransMontaigne Partners L.P.)
Swing Loans. In addition to the foregoing, JPMorgan Chase shall from time to time upon the request of the Borrower, and provided that all of the applicable conditions precedent specified in Sections 4.1 and 4.2 have been satisfied, make loans (a“Swing Loans”) to the Borrower in an aggregate principal amount not to exceed at any one time outstanding $5,000,000. The Borrower shall execute and deliver to JPMorgan Chase the Swing Loan Note to evidence the Swing Loans. Swing Loans shall be in amounts that are integral multiples of $1,000,000 and shall, unless otherwise expressly stated in this Agreement, constitute “Loans” for all purposes hereunder, except they shall not be considered a utilization of the Commitment of JPMorgan Chase or any other Lender for purposes of calculating commitment fees hereunder. Notwithstanding the foregoing sentence, the aggregate amount of all Loans (including all Swing Loans) and L/C Exposures shall not at any time exceed the aggregate of the Commitments. To request a Swing Loan, the Borrower shall notify the Administrative Agent and JPMorgan Chase of such request by telephone no later than 11:00 a.m., New York City time, on the date of the proposed Swing Loan, and shall confirm promptly by hand delivery or telecopy to the Administrative Agent and JPMorgan Chase a written Borrowing Request signed by the Borrower. Each request for a Swing Loan shall state the amount of the Swing Loan requested, the date on which such Swing Loan is to be made, which shall be a Business Day, and the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.6. Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, all Swing Loan Loans shall be made as ABR Loans and may be borrowed, prepaid and reborrowed; provided that any and all such Swing Loans then outstanding shall be due and payable in full on the Maturity Date. At any time, upon the request of JPMorgan Chase or the Borrower, each Lender mayother than JPMorgan Chase shall, at its election and option on the third Business Day after such request is made, purchase a participating interest in any one or more Swing Loans made in accordance with the first sentence of this subsection (b) in an amount equal to its sole discretion cancelable Applicable Percentage of such Swing Loans. Each Lender will immediately transfer to JPMorgan Chase, in immediately available funds, the amount of its participation. Whenever, at any time after JPMorgan Chase has received from any Lender such Lender’s participating interest in a Swing Loan, JPMorgan Chase receives any payment on account thereof, JPMorgan Chase 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 JPMorgan Chase is required to be returned, such Lender will return to JPMorgan Chase any portion thereof previously distributed by JPMorgan Chase to it. Each Lender’s obligation to purchase such participating interests shall be absolute and unconditional and shall not be affected by any circumstances, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other rights which such Lender or any other Person may have against JPMorgan Chase or any other Person for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or ; (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence existence of a Default or an Event of Default and regardless or the termination of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by the Commitments; (iii) any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse adverse change in the condition (financial or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereofotherwise) of the Maximum Undrawn Amount Borrower or any other Person; (iv) any breach of all outstanding Letters this Agreement by the Borrower or any other Person; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of Creditthe foregoing. Each Swing Loan, once so participated, shall cease to be a Swing Loan for purposes of this Agreement but shall remain a Loan.
Appears in 1 contract
Sources: Credit Agreement (Stewart & Stevenson Services Inc)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans (“each a "Swing Loans”Loan") otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Facility from time to time after on any Business Day during the Closing period from the date hereof until the Revolving Credit Termination Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of at any time outstanding (together with the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and any other loans made by the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at Lender hereunder in its capacity as a Lender or the option and election of Swing Loan Lender) Swing Loans at any time not to exceed the lesser of $20,000,000 and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable 's Ratable Portion of the Available Credit at any time for any reason whatsoever and such time; provided, however, that the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter not make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. The Swing Loan Lender shall be obligated entitled to make rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within seven days of its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this Section 2.3(a) (Swing Loans) amounts of Swing Loans in the futurerepaid may be reborrowed under this Section 2.3(a) (Swing Loans).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy to the contrary provided for hereinAdministrative Agent a duly completed request setting forth the date, the requested amount and date of the Swing Loan (a "Swing Loan Request"), to be received by the Administrative Agent not later than 12:00 p.m. (New York City time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent which will make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from any Lender or by Required Lenders the Administrative Agent (if a Person other than the Swing Loan Lender) that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied or waived. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 (Conditions Precedent to Each Loan and Letter of Credit) hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon The Swing Loan Lender shall notify the making Administrative Agent in writing (which may be by telecopy) weekly, by no later than 10:00 a.m. (New York City time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time during the continuance of an Event of Default that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in subsection (e) below, such Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York City time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender's Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive) provided that the Swing Loan Lender has not received the notice referred to in the penultimate sentence of clause (b) above prior to any such Swing Loan (whether and the condition referred to in such notice has not been waived in accordance with this Agreement), each Lender shall, before or after 11:00 a.m. (New York City time) on the Business Day next succeeding the date of such Lender's receipt of such written demand, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such demand. Upon such payment by a Lender, such Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event under Section 9.1(f) (Events of Default and regardless of whether a Settlement has been requested with respect to such Swing LoanDefault), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender's Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Lender is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a "SWING LOAN") otherwise available to have such request or deemed request treated the Borrower under the Revolving Credit Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to exceed the Swing Loan Sublimit; PROVIDED, HOWEVER, that at no time shall the Swing Loan Lender make any Swing Loan in excess of the Available Credit. Each Swing Loan shall be a Base Rate Loan and must be paid in full upon any Revolving Credit Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this CLAUSE (a), amounts of Swing Loans repaid may be reborrowed under this CLAUSE (a).
(b) In order to request for a Swing Loan, the Borrower shall telecopy (or forward by electronic mail or similar means) to the Administrative Agent a duly completed request in substantially the form of EXHIBIT D (FORM OF SWING LOAN REQUEST), setting forth the requested amount and may advance same date of such Swing Loan (a "SWING LOAN REQUEST"), to be received by the Administrative Agent not later than 1:00 p.m. (New York time) on the day funds to Borrowers as a of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender of the details of the requested Swing Loan; provided that notwithstanding anything . Subject to the contrary provided for hereinterms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Revolving Credit Lender that one or more of the applicable conditions precedent contained in SECTION 3.2 (CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF CREDIT) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof SECTION 3.2 (CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF CREDIT) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (which writing may be a telecopy or electronic mail) weekly, by no later than 10:00 a.m. (New York time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving Credit Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the 52 CREDIT AGREEMENT PRESTIGE BRANDS, INC. manner provided in CLAUSE (e) below, such Revolving Credit Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in CLAUSE (c) above and each demand referred to in CLAUSE (d) above to each Revolving Credit Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender's Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in SECTIONS 3.2 (CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF CREDIT) and 2.1(a) (THE COMMITMENTS) shall have been satisfied (which conditions precedent the Revolving Credit Lenders hereby irrevocably waive), each Revolving Credit Lender shall, before 11:00 a.m. (New York time) on the Business Day next succeeding the date of such Revolving Credit Lender's receipt of such notice or after demand, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except as provided in CLAUSE (f) below, be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Revolving Credit Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default under CLAUSE (ii) or an Event (iii) of Default and regardless of whether a Settlement has been requested with respect to such Swing LoanSECTION 9.1(f) (EVENTS OF DEFAULT), each Revolving Credit Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Revolving Credit Lender pursuant to CLAUSE (e) above, which participation shall be in a principal amount equal to such Revolving Credit Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Revolving Credit Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to CLAUSE (e) above, in proportion immediately available funds, an amount equal to its such Revolving Commitment PercentageCredit Lender's Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Revolving Credit Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Revolving Credit Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Credit Lender (i) is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to CLAUSE (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to CLAUSE (f) above, Agent the Swing Loan Lender shall promptly distribute to such Revolving Credit Lender its such Revolving Commitment Percentage Credit Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received CREDIT AGREEMENT PRESTIGE BRANDS, INC. by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Loan other than those received from a Revolving Credit Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment CLAUSE (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Sources: Credit Agreement (Prestige Brands International, Inc.)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, each Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make loans denominated in Dollars (each a “Swing Loan”) otherwise available to have the Company under the Revolving Credit Facility from time to time on any Business Day during the period from the Closing Date until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loans made by such Swing Loan Lender hereunder in its capacity as Lender or Swing Loan Lender) not to exceed the lesser of such Swing Loan Lender’s Ratable Portion of the Available Credit under the Revolving Credit Facility and such Swing Loan Lenders’ Swing Loan Allocation and, together with the aggregate outstanding principal amount of all Swing Loans outstanding, not to exceed $30,000,000; provided, however, that a Swing Loan Lender shall not make any Swing Loan at any time to the extent that, after giving effect to such Swing Loan the Dollar Equivalent of the aggregate Revolving Credit Outstandings would exceed the Revolving Credit Commitments in effect at such time. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within ten days of its making or, if sooner, upon any Revolving Credit Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Company shall fax (or forward by electronic mail or similar means) to the contrary provided for hereinAdministrative Agent a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount (which shall be in a minimum principal amount of $1,000,000 or an integral multiple of $100,000 in excess thereof) and date of the Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 12:00 p.m. (New York time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the applicable Swing Loan Lender may not make (i) of the details of the requested Swing Loan Advances if Loan, (ii) that the amount of such requested Swing Loan, together with the aggregate outstanding principal amount of any other Loans made by such Swing Loan Lender has been notified hereunder in its capacity as Lender or Swing Loan Lender, does not exceed such Swing Loan Lender’s Ratable Portion of the Available Credit under the Revolving Credit Facility and (iii) that the amount of such requested Swing Loan, together with the aggregate outstanding principal amount of all Swing Loans outstanding, does not exceed $30,000,000. Subject to the terms of this Agreement, such Swing Loan Lender shall make a Swing Loan available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Company by the end of business on the date of the relevant Swing Loan Request. No Swing Loan Lender shall make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. No Swing Loan Lender shall otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a Each Swing Loan Lender shall notify the Administrative Agent in writing (whether before which writing may be a telecopy or after electronic mail) weekly, by no later than 10:00 a.m. (New York time) on the occurrence first Business Day of a Default or each week, of the aggregate principal amount of its Swing Loans then outstanding. CREDIT AGREEMENT JOHNSONDIVERSEY, INC.
(d) Each Swing Loan Lender may demand at any time during the continuance of an Event of Default that each Revolving Credit Lender pay to the Administrative Agent, for the account of such Swing Loan Lender, in the manner provided in clause (e) below, such Revolving Credit Lender’s Ratable Portion of all or a portion of such Swing Loan Lender’s outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and regardless shall specify the outstanding principal amount of whether Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Revolving Credit Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 12:00 p.m. (New York time) on any Business Day or any such demand received on a Settlement has been requested day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with respect a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such Swing Loandemand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall have been satisfied (which conditions precedent the Revolving Credit Lenders hereby irrevocably waive), each Revolving Credit Lender shall be deemedshall, without further action by any party heretobefore 11:00 a.m. (New York time) on the Business Day next succeeding the date of such Revolving Credit Lender’s receipt of such written statement, make available to have unconditionally and irrevocably purchased from the Administrative Agent, in immediately available funds, for the account of the applicable Swing Loan Lender, the amount specified in such statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the Company. The Administrative Agent shall use such funds to repay the Swing Loans to the applicable Swing Loan Lender. To the extent that any Revolving Credit Lender fails to make such payment available to the Administrative Agent for the account of any Swing Loan Lender, the Company shall repay such Swing Loans on demand.
(f) Upon the occurrence of an Event of Default under Section 9.1(f) or (g) (Events of Default), each Revolving Credit Lender shall acquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Revolving Credit Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Revolving Credit Lender’s Ratable Portion of such Swing Loan, by paying to the applicable Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its such Revolving Commitment PercentageCredit Lender’s Ratable Portion of such Swing Loan. If such amount is not in fact made available by such Revolving Credit Lender to the applicable Swing Loan Lender or Agent mayon such date, such Swing Loan Lender shall be entitled to recover such amount on demand from such Revolving Credit Lender together with interest accrued from such date at any time, require the Revolving Lenders Interbank Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Credit Lender (i) is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the applicable Swing Loan Lender shall promptly distribute to such Revolving Credit Lender its such Revolving Commitment Percentage Credit CREDIT AGREEMENT JOHNSONDIVERSEY, INC. Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect such Swing Loan Lender on account of such Swing Loan; provided that no Loan other than those received from a Revolving Credit Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, 4886‐4763‐4628><v2>< 4033.197> make swing loan advances (“"Swing Loans”") available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans Loans, FILO Advances and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount Amount, less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula AmountBorrowing Base. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All To the extent requested by Swing Loan Lender, Swing Loans shall be evidenced by a secured promissory note (the “"Swing Loan Note”") substantially in the form attached hereto as Exhibit 2.4(a) hereto(or such other form as agreed in writing by Agent and Borrowing Agent). Swing Loan Lender’s 's agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance or FILO Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance or FILO Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances or FILO Advances in an amount in excess of its Revolving Commitment 4886‐4763‐4628><v2>< 4033.197> Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (B. Riley Financial, Inc.)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have such request or deemed request treated the Borrower under the Facility from time to time on any Business Day during the period from the Effective Date until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to exceed the Swing Loan Sublimit; provided, however, that at no time shall the Swing Loan Lender make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Tranche A Outstandings would exceed the Maximum Tranche A Credit. Each Swing Loan shall be a Base Rate Loan and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request for a Swing Loan, the Borrower shall telecopy (or forward by electronic mail or similar means) to the Administrative Agent a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount and may advance same date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. (New York time) on the day funds to Borrowers as a of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender of the details of the requested Swing Loan; provided that notwithstanding anything . Subject to the contrary provided for hereinterms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders (including at the request of any Lender) that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon The Swing Loan Lender shall notify the making Administrative Agent in writing (which writing may be a telecopy or electronic mail) weekly, by no later than 10:00 a.m. (New York time) on Thursday of each week (or if such day is not a Business Day, the next succeeding Business Day), of the aggregate principal amount of its Swing Loans then outstanding, and each Tranche A Lender shall pay its Ratable Portion of such amount to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (e) below.
(d) The Swing Loan Lender may demand at any time that each Tranche A Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (e) below, such Tranche A Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid. At any time when a Swing Loan is outstanding, with respect to any Lender that becomes a Defaulting Lender the Swing Loan Lender may demand that (whether i) the Borrower pledge cash collateral sufficient to cover such Defaulting Lender’s Ratable Portion of such outstanding Swing Loan or (ii) the Borrower put some other arrangement reasonably satisfactory to such Swing Loan Lender in place. Upon receipt by the Administrative Agent of all amounts owing from the Tranche A Lenders (including any Defaulting Lenders) pursuant to this clause (d), any cash collateral pledged by the Borrower in accordance with this clause (d) shall be promptly returned to the Borrower.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Tranche A Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand
(a) (The Revolving Credit Commitments) shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive for purposes of this clause (e)), each Tranche A Lender shall, before 11:00 a.m. (New York time) on the Business Day next succeeding the date of such Lender’s receipt of such notice or after demand, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Tranche A Lender, such Tranche A Lender shall, except as provided in clause (f) below, be deemed to have made a Tranche A Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Tranche A Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event under Section 7.1(f) (Events of Default and regardless of whether a Settlement has been requested with respect to such Swing LoanDefault), each Revolving Tranche A Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Tranche A Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Tranche A Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Tranche A Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Tranche A Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Tranche A Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Tranche A Lender (i) is required deemed to fund, and funds, its participation in have made a Tranche A Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Tranche A Lender its Revolving Commitment Percentage such Tranche A Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Sources: Credit Agreement (Tekni Plex Inc)
Swing Loans. (a) Subject to In lieu of making Revolving Loans, the Swing Line Lender, in its sole discretion, on the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, may make swing loan advances loans (each a “Swing LoansLoan”) available to Borrowers as provided for in this Section 2.4 at any time or Borrower from time to time after until the Closing Maturity Date to, but not including, the last day of the Term, as provided herein in an aggregate principal amount up not to but not in excess of exceed at any time outstanding the Maximum Swing Loan Advance AmountAvailable Credit. Each Swing Loan shall be made and repaid upon such notice as the Swing Line Lender and Borrower shall agree, provided except that the outstanding aggregate principal amount of Swing Loans and may be made automatically (A) pursuant to certain cash management arrangements made from time to time by Borrower with Administrative Agent and/or (B) for the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amountpurposes described in Section 2.2(e). All Swing Loans shall be Domestic Base Rate Loans onlyand may, at Swing Line Lender’s option, be evidenced by a promissory note. Borrowers may borrow (at Borrower shall repay the option outstanding principal balance of the Swing Loans, together with all accrued and election of Swing Loan Lender), repay unpaid interest and re-borrow (at related fees on the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement DatesMaturity Date. All interest due on the Swing Loans shall be evidenced by a secured promissory note (payable to the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Line Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either On the first Business Day of each week, the Swing Loans outstanding as of the end of the immediately preceding Business Day shall be converted to Revolving Loans, unless the amount outstanding was less than $10,000,000 (iin which event, such Swing Loans shall remain as Swing Loans). By 9:00 a.m. (Pacific Time) any request by Borrowing on the first Business Day of each week in which such a conversion is to occur, Administrative Agent for a Revolving Advance made pursuant shall notify each Lender of the CREDIT AGREEMENT PAGE 18 principal amount of such outstanding Swing Loans and each Lender’s Applicable Percentage thereof. Each Lender shall, before 11:00 a.m. (Pacific Time) on such Business Day, make available to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may electAdministrative Agent, in immediately available funds, the amount of its sole discretion, to have Applicable Percentage of such request or deemed request treated as a request for a principal amount of such Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reasonLoans.
(c) Upon At any time upon the making request of a the Swing Loan Line Lender to Administrative Agent that some or all of the Swing Loans be converted to Revolving Loans, then, on the next Business Day, Administrative Agent shall notify each Lender of the principal amount of Swing Loans outstanding as of 9:00 a.m. (whether Pacific Time) on such Business Day (or of the principal amount of the Swing Loans which Swing Line Lender desires to be converted) and each Lender’s Applicable Percentage thereof. Each Lender shall, before or after 9:00 a.m. (Pacific Time) on the occurrence next Business Day, make available to Administrative Agent, in immediately available funds, the amount of a Default or an Event its Applicable Percentage of Default and regardless such principal amount of whether a Settlement has been requested with respect to such Swing LoanLoans.
(d) Upon any payment by a Lender pursuant to Section 2.2(b) or (c), each Revolving such Lender shall be deemed, without further action by any party hereto, deemed to have unconditionally made a Revolving Loan as a Base Rate Loan to Borrower, notwithstanding any failure by Borrower to satisfy the conditions contained in Section 5.2 (without regard to the minimum amount of Base Rate Loans). Administrative Agent shall use such funds to repay the principal amount of Swing Loans to the Swing Line Lender. With respect to the Swing Loans, after receipt of payment of principal or interest thereon, Administrative Agent will promptly distribute the same to the Swing Line Lender at its lending office.
(e) Lenders and irrevocably purchased from Borrower agree that Swing Loan LenderLoans may be made to allow Administrative Agent to pay each Lender its share of fees, without recourse or warranty, an undivided interest and participation in other amounts due hereunder to the extent such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent mayfees, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditother amounts are then due and payable.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing SeventhNinth Amendment Effective Date to, but not including, the last day of the TermMaturity Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured secondfourth amended and restated promissory note (the “by Borrowers in favor of Swing Loan Note”) Lender substantially in the form attached as Exhibit 2.4(a) heretohereto (the “Swing Loan Note”). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereof. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 2.22 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans (“Swing Loans”each a "SWING LOAN") otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Facility from time to time after on any Business Day during the Closing period from the date hereof until the Revolving Credit Termination Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall at any time not to exceed an amount equal to the lesser of (i) $10,000,000 and the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender)'s Ratable Portion of the Available Credit; PROVIDED, repay and re-borrow (at HOWEVER, that the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter not make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. The Swing Loan Lender shall be obligated entitled to make rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within seven days of its making or, if sooner, upon any Revolving Credit Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this SECTION 2.3(A), amounts of Swing Loans in the futurerepaid may be reborrowed under this SECTION 2.3(A).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy to the contrary provided for hereinAdministrative Agent a duly completed request setting forth the date, the requested amount and date of the Swing Loan (a "SWING LOAN REQUEST"), to be received by the Administrative Agent not later than 1:00 p.m. (New York City time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent or by Required Lenders which will make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from any Lender that one or more of the applicable conditions precedent contained in SECTION 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 SECTION 3.2 hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (which may be by telecopy) weekly, by no later than 10:00 a.m. (New York City time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in subsection (e) below, such Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in CLAUSE (C) above and each demand referred to in CLAUSE (D) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York City time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender's Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in SECTION 3.2 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Lender shall, before or after 11:00 a.m. (New York City time) on the Business Day next succeeding the date of such Lender's receipt of such written statement, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in CLAUSE (F) below, be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder SECTION 9.1(F), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to CLAUSE (E) above, which participation shall be in a principal amount equal to such Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to CLAUSE (E) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender's Ratable Portion of such Swing Loan. If such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover such amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Lender is required deemed to fund, and funds, its participation in have made a Revolving Credit Loan pursuant to CLAUSE (E) above with respect to any Swing Loans purchased hereunderLoan or purchases an undivided participation interest in a Swing Loan pursuant to CLAUSE (F) above, Agent a Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment CLAUSE (taking into account any reallocations under Section 2.23 hereofE) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (F) above.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Administrative Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after on any Business Day during the Closing Date toperiod from the date of this Agreement until the Maturity Date, but not including, make loans ("Swing Loans") under the last day of Swing Note to the Term, Borrower in an aggregate principal amount up not to but not in excess of the Maximum Swing Loan Advance Amount, exceed $5,000,000.00 outstanding at any time; provided that the Outstanding Obligations of all -------- Lenders shall not exceed the combined Commitments at any time. Subject to the other provisions of this Agreement, Borrower may from time to time borrow, prepay (in whole or in part and without premium or penalty), and reborrow Swing Loans. Except as provided in the following clause (b), each Swing Loan and optional prepayment of a Swing Loan shall be made pursuant to telephone notice to Administrative Agent given no later that 1:00 p.m. (Houston, Texas time) on the date of the proposed Swing Loan or prepayment, promptly confirmed by a completed and executed Notice of Swing Loan Request or Prepayment in the form of the attached Exhibit F telecopied to Administrative Agent. Administrative Agent will make the Swing Loan available to Borrower, and Borrower will make the prepayment available to Administrative Agent, at Borrower's account with Administrative Agent. Each Swing Loan shall be a Base Rate Loan.
(b) Borrower shall repay the outstanding aggregate principal amount of and all accrued and unpaid interest on each Swing Loans and Loan on the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser earlier of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or date 30 days after such Swing Loan is made and (ii) the Formula AmountMaturity Date. All Swing Loans Borrower and the Lenders agree that Administrative Agent may request each Lender to pay, and upon such a request made in accordance with the following sentence each Lender shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election pay, to Administrative Agent such Lender's Pro Rata Share of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make all outstanding Swing Loans as provided in this Section 2.4 during a Base Rate Loan under such Lender's Commitment (A) on each Wednesday, or if such Wednesday is not a Business Day on the period between Settlement Dates. All next Business Day after such Wednesday, on which the aggregate outstanding principal balance of all Swing Loans, after giving effect to all Swing Loans shall to be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever made on such day and the making notices of prepayments of Swing Loans by given for such day, is greater than or equal to $2,000,000.00, (B) on any Business Day on which a Swing Loan has been outstanding for 14 or more days, and (C) upon written request from Administrative Agent. In connection with any Loan to be made as contemplated by the foregoing sentence, Administrative Agent shall give each Lender from time a notice by 1:00 p.m. (Houston, Texas time) on the date the proposed Loan is to time shall not create any duty or obligationbe made, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans a Base Rate Loan in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance amount of its Pro Rata Share of the outstanding Swing Loans. All Loans made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed each request made by Borrowers for a Revolving Advance Administrative Agent pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, foregoing sentence shall be considered to have such request or deemed request treated as a request for a Swing Loanbe Borrowings, and may advance same day funds Borrower hereby irrevocably instructs Administrative Agent to Borrowers as a Swing Loan; provided that notwithstanding anything apply the proceeds of such Loans to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more prepayment of the applicable conditions set forth outstanding Swing Loans. Each Lender (including Administrative Agent) shall make its Pro Rata Share of each such Borrowing available to Administrative Agent in Section 8.2 hereof have not been satisfied or immediately available funds by 3:00 p.m. (Houston, Texas time) on the Revolving Commitments have been terminated for any reason.
(c) Upon the making date requested, irrespective of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless Default.
(c) Upon the acceleration of whether a Settlement has been requested with respect the Maturity Date pursuant to such Swing Loan)this Agreement, each Revolving Lender shall be deemed, without further action by any party hereto, pay to have unconditionally and irrevocably purchased from Swing Loan Administrative Agent such Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount 's Pro Rata Share of all outstanding Letters Swing Loans as a Base Rate Loan under such Lender's Commitment, but in no event shall any Lender be obligated to fund more than its Commitment. Upon the date of Creditsuch payment all accrued but unpaid interest on the Swing Note to such date shall be due and payable by Borrower to Administrative Agent.
(d) The indebtedness of Borrower to Administrative Agent resulting from Swing Loans owing to Administrative Agent shall be evidenced by the Swing Note of Borrower payable to the order of Administrative Agent.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have such request or deemed request treated the Borrower under the Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to exceed the Swing Loan Sublimit; provided, however, that at no time shall the Swing Loan Lender make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within fifteen days after its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a). AMENDED AND RESTATED CREDIT AGREEMENT T▇▇▇▇ HEALTHCARE CORPORATION
(b) In order to request for a Swing Loan, the Borrower shall telecopy (or forward by electronic mail or similar means) to the Administrative Agent a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount and may advance same date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. (New York time) on the day funds to Borrowers as a of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender of the details of the requested Swing Loan; provided that notwithstanding anything . Subject to the contrary provided for hereinterms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Revolving Credit Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (whether before which writing may be a telecopy or after electronic mail) weekly, by no later than 10:00 a.m. (New York time) on the occurrence first Business Day of a Default or an Event each week, of Default and regardless the aggregate principal amount of whether a Settlement has been requested with respect to such its Swing Loan), Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving Credit Lender shall be deemedpay to the Administrative Agent, without further action by any party hereto, to have unconditionally and irrevocably purchased from for the account of the Swing Loan Lender, without recourse in the manner provided in clause (e) below, such Revolving Credit Lender’s Ratable Portion of all or warrantya portion of the outstanding Swing Loans, an undivided interest which demand shall be made through the Administrative Agent, shall be in writing and participation shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Revolving Credit Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such Swing Loan in proportion notice or demanded to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute be paid pursuant to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent demand, and, notwithstanding whether or not the conditions precedent set forth in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment Sections 3.2 (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoeverdiscretion, make swing loan advances loans (each a “Swing LoansLoan”) otherwise available to the Borrowers as provided for in this Section 2.4 at any time or from time to time after on any Business Day during the Closing period from the Effective Date to, but not including, until the last day of the Term, Revolving Termination Date in an aggregate principal amount up outstanding at any time not to but not exceed $50,000,000.000.00; provided, however, that, in no event, shall any Swing Loan be made in excess of the Maximum Available Credit. Each Swing Loan Advance Amountshall be a Base Rate Loan and shall in any event mature no later than the Revolving Termination Date. Within the limits set forth in the first sentence of this clause (a), provided amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request a Swing Loan, a Borrower shall telecopy (or, if consented to by the Swing Loan Lender and the Revolving and LC Administrative Agent, forward by electronic mail or similar means) to the Swing Loan Lender (with a copy to the Revolving and LC Administrative Agent) a duly completed request in substantially the form of Exhibit D (or shall make such request by telephone and promptly thereafter forward a written confirmation containing the same information), setting forth the requested amount and date of the Swing Loan (a “Swing Loan Request”), to be received by the Swing Loan Lender not later than 3:00 p.m. (New York time) on the day of the proposed borrowing. Subject to the terms of this Agreement, the Swing Loan Lender may make a Swing Loan available to the requesting Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Revolving and LC Administrative Agent or any Revolving Lender that one or more of the outstanding conditions precedent contained in Section 3.3 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 3.3 have been satisfied in connection with the making of any Swing Loan.
(c) The Swing Loan Lender shall notify the Revolving and LC Administrative Agent in writing (which writing may be a telecopy or, if agreed to by the Revolving and LC Administrative Agent, electronic mail) weekly, by no later than 11:00 a.m. (New York time) on the first Business Day of each week, of the aggregate principal amount of Swing Loans and then outstanding.
(d) Each Revolving Lender shall pay to the Revolving Advances at any one time outstanding shall not exceed an amount equal to and LC Administrative Agent, for the lesser account of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at in the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as manner provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note clause (the “Swing Loan Note”e) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan below, such Revolving Lender’s agreement to make Ratable Portion of the outstanding Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the futureLoans.
(be) Upon either The Revolving and LC Administrative Agent shall forward each notice referred to in clause (ic) above to each Revolving Lender on the day such notice or such demand is received by the Revolving and LC Administrative Agent (except that any request such notice or demand received by Borrowing the Revolving and LC Administrative Agent for a Revolving Advance made pursuant after 4:00 p.m. (New York time) on any Business Day shall not be required to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant be forwarded to the provisions Revolving Lenders by the Revolving and LC Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Revolving and LC Administrative Agent specifying the amount of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more each Revolving Lender’s Ratable Portion of the applicable aggregate principal amount of the Swing Loans stated to be outstanding in such notice, and, notwithstanding whether or not the conditions precedent set forth in Section 8.2 hereof 3.3 shall have not been satisfied or (which conditions precedent the Revolving Commitments Lenders hereby irrevocably waive), each Revolving Lender shall, before 11:00 a.m. (New York time) on the Business Day next succeeding the date of such Revolving Lender’s receipt of such written statement, make available to the Revolving and LC Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement as its Ratable Portion of the aggregate principal amount of the Swing Loans outstanding. If and to the extent that a Revolving Lender shall not have been terminated so made such Ratable Portion available to the Revolving and LC Administrative Agent for any reasonthe account of the Swing Loan Lender, such Revolving Lender on the one hand and the Borrowers jointly and severally on the other agree to repay to the Revolving and LC Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrowers until the date such amount is repaid to the Revolving and LC Administrative Agent, at (i) in the case of the Borrowers, the interest rate applicable at the time to overdue Swing Loans and (ii) in the case of such Revolving Lender, the Federal Funds Rate for the first Business Day and thereafter at the interest rate applicable at the time to overdue Swing Loans. Upon such payment by a Revolving Lender, such Revolving Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan that is a Base Rate Loan to the applicable Borrower. The Revolving and LC Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender.
(cf) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 9.1(f), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan in a principal amount equal to such Revolving Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Revolving Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its such Revolving Commitment PercentageLender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Revolving Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Revolving Lender together with interest accrued from such date at any time, require the Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to Base Rate Loans for Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereofLoans. From and after the date, if any, date on which any Revolving Lender (i) is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) acquires an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Revolving Lender its such Revolving Commitment Percentage Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Loan other than those received from a Revolving Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions set forth of this Agreement, upon request of Borrower and/or PR Borrower, the Swing Loan Lender agrees to make one or more Swing Loans to Borrower and/or PR Borrower from time to time from and including the Closing Date to but excluding the Swing Loan Maturity Date, up to but not exceeding the amount of the Swing Loan Lender's Swing Loan Commitment as then in effect (such Swing Loans referred to in this Section 2.01(e) now or hereafter made by the Swing Loan Lender to Borrower and/or PR Borrower from and including and after the Closing Date are hereinafter collectively called the "Swing Loans"). Prior to the Swing Loan Maturity Date, Borrower and/or PR Borrower may borrow, repay and reborrow Swing Loans up to the Swing Loan Commitment in accordance with the terms of this Agreement. The Swing Loan Lender shall not make any Swing Loans on or after the Swing Loan Maturity Date. Notwithstanding anything to the contrary contained in this Section 2.01(e) or elsewhere in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter not be obligated obligated, pursuant to this Section 2.01(e) or otherwise, to make any Swing Loans in Loan to or for the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made account of Borrower and/or PR Borrower, and Borrower and/or PR Borrower shall not be entitled to borrow Swing Loans, pursuant to this Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant 2.01(e), if, after giving full effect to the provisions of Section 2.2(a) hereof, requested Swing Loan Lender may elect, in its sole discretionand the application of the proceeds thereof, to have the extent such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon application is substantially simultaneous with the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no , the aggregate outstanding amount of Tranche A Revolving Lender shall be obligated in any event to make Revolving Advances in an Credit Loans, plus the aggregate outstanding amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) Swing Loans, plus the aggregate outstanding Letter of Credit Liabilities would exceed the aggregate amount of the Maximum Undrawn Amount of all outstanding Letters of Credit.Tranche A Revolving Credit Commitments as in effect at such time. Notwithstanding anything herein or elsewhere to the contrary, the Swing Loans will be made and maintained only as
Appears in 1 contract
Sources: Credit Agreement (Centennial Communications Corp /De)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that shall make, in order to facilitate the administration of this AgreementDollars, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans (“Swing Loans”each a "SWING LOAN") otherwise available to Borrowers as provided for in this Section 2.4 at any time or Borrower under the Revolving Credit Facility from time to time after on any Business Day during the Closing period from the date hereof until the Revolving Credit Termination Date to, but not including, the last day of the Term, in an aggregate principal amount up at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to but not exceed the Swing Loan Sublimit; PROVIDED, HOWEVER, that at no time shall the Swing Loan Lender make any Swing Loan in excess of the Maximum Available Credit. Each Swing Loan Advance Amountshall be a Base Rate Loan and must be paid in full upon any Revolving Credit Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), provided that the outstanding aggregate principal amount amounts of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall repaid may be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans reborrowed under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the futureclause (a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything Borrower shall telecopy (or forward by electronic mail or similar means) to the contrary provided for hereinAdministrative Agent a duly completed request in substantially the form of EXHIBIT D, setting forth the requested amount and date of such Swing Loan (a "SWING LOAN REQUEST"), to be received by the Administrative Agent not later than 1:00 p.m. (New York time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Revolving Credit Lender that one or more of the applicable conditions precedent contained in SECTION 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof SECTION 3.2 have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (which writing may be a telecopy or electronic mail) weekly, by no later than 10:00 a.m. (New York time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving Credit Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (e) below, such Revolving Credit Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(i) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Revolving Credit Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender's Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in SECTION 3.2 and SECTION 2.1(A) shall have been satisfied (which conditions precedent the Revolving Credit Lenders hereby irrevocably waive), each Revolving Credit Lender shall, before 11:00 a.m. (New York time) on the Business Day next succeeding the date of such Revolving Credit Lender's receipt of such notice or demand, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Revolving Credit Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, Borrower shall repay such Swing Loan within two Business Days after receipt of any demand by the Administrative Agent for such repayment.
(ii) If any Swing Loan shall remain outstanding at 12:00 p.m. (New York time) on the fifth Business Day following the date on which such Swing Loan is made and if by such time on such fifth Business Day the Administrative Agent shall have received neither (x) a notice of borrowing delivered by Borrower pursuant to SECTION 2.2(A) requesting that Revolving Loans be made pursuant to SECTION 2.1(A) on the immediately succeeding Business Day in an amount at least equal to the aggregate principal amount of such Swing Loan, nor (y) any other notice reasonably satisfactory to the Administrative Agent indicating Borrower's intent to repay such Swing Loan on the immediately succeeding Business Day with funds obtained from other sources, the Administrative Agent shall be deemed to have received a demand from the Swing Loan Lender pursuant to clause (d) above with respect to the entire outstanding amount of such Swing Loan, and the procedures set forth in clause (e)(i) above shall be followed.
(f) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder SECTION 9.1(F), each Revolving Credit Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Revolving Credit Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Revolving Credit Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Revolving Credit Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its such Revolving Commitment PercentageCredit Lender's Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Revolving Credit Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Revolving Credit Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Credit Lender (i) is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Revolving Credit Lender its such Revolving Commitment Percentage Credit Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Loan other than those received from a Revolving Credit Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
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Swing Loans. (a) Subject to In lieu of making Revolving A Loans, the Swing Line Lender, in its sole discretion, on the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, may make swing loan advances loans (each a “Swing LoansLoan”) available to Borrowers as provided for in this Section 2.4 at any time or Borrower from time to time after until the Closing Revolving A Loan Maturity Date to, but not including, the last day of the Term, as provided herein in an aggregate principal amount up not to but not in excess of exceed at any time outstanding the Maximum Swing Loan Advance AmountAvailable Credit. Each Swing Loan shall be made and repaid upon such notice as the Swing Line Lender and Borrower shall agree, provided except that the outstanding aggregate principal amount of Swing Loans and may be made automatically (A) pursuant to certain cash management arrangements made from time to time by Borrower with Administrative Agent and/or (B) for the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amountpurposes described in Section 2.2(e). All Swing Loans shall be Domestic Base Rate Loans onlyand may, at Swing Line Lender’s option, be evidenced by a promissory note. Borrowers may borrow (at Borrower shall repay the option outstanding principal balance of the Swing Loans, together with all accrued and election of Swing unpaid interest and related fees on the Revolving A Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement DatesMaturity Date. All interest due on the Swing Loans shall be evidenced by a secured promissory note (payable to the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Line Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either On the first Business Day of each week, the Swing Loans outstanding as of the end of the immediately preceding Business Day shall be converted to Revolving A Loans, unless the amount outstanding was less than $10,000,000 (iin which event, such Swing Loans shall remain as Swing Loans). By 9:00 a.m. (Pacific Time) any request by Borrowing on the first Business Day of each week in which such a conversion is to occur, Administrative Agent for a shall notify each Lender of the principal amount of such outstanding Swing Loans and each Lender’s Revolving Advance made pursuant A Loan Commitment Percentage thereof. Each Lender shall, before 11:00 a.m. (Pacific Time) on such Business Day, make available to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may electAdministrative Agent, in immediately available funds, the amount of its sole discretion, to have Revolving A Loan Commitment Percentage of such request or deemed request treated as a request for a principal amount of such Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reasonLoans.
(c) Upon At any time upon the making request of a the Swing Line Lender to Administrative Agent that some or all of the Swing Loans be converted to Revolving A Loans, then, on the next Business Day, Administrative Agent shall notify each Lender of the principal amount of Swing Loans outstanding as of 9:00 a.m. (Pacific Time) on such Business Day (or of the principal amount of the Swing Loans which Swing Line Lender desires to be converted) and each Lender’s Revolving A Loan Commitment Percentage thereof. Each Lender shall, before 9:00 a.m. (whether before or after Pacific Time) on the occurrence next Business Day, make available to Administrative Agent, in immediately available funds, the amount of a Default or an Event its Revolving A Loan Commitment Percentage of Default and regardless such principal amount of whether a Settlement has been requested with respect to such Swing LoanLoans.
(d) Upon any payment by a Lender pursuant to Section 2.2(b) or (c), each Revolving such Lender shall be deemed, without further action by any party hereto, deemed to have unconditionally made a Revolving A Loan as a Base Rate Loan to Borrower, notwithstanding any failure by Borrower to satisfy the conditions contained in Section 5.2 (without regard to the minimum amount of Base Rate Loans). Administrative Agent shall use SECOND AMENDED AND RESTATED CREDIT AGREEMENT43 such funds to repay the principal amount of Swing Loans to the Swing Line Lender. With respect to the Swing Loans, after receipt of payment of principal or interest thereon, Administrative Agent will promptly distribute the same to the Swing Line Lender at its Applicable Lending Office.
(e) Lenders and irrevocably purchased from Borrower agree that Swing Loan LenderLoans may be made to allow Administrative Agent to pay each Lender its share of fees, without recourse or warranty, an undivided interest and participation in other amounts due hereunder to the extent such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent mayfees, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditother amounts are then due and payable.
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Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoevermake loans (each, make swing loan advances (a “Swing LoansLoan”) otherwise available to Borrowers as provided for in this Section 2.4 at any time or Borrower under the Revolving Credit Facility from time to time after on any Business Day during the Closing period from the Effective Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall at any time not to exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or $15,000,000 and (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Ratable Portion of the amount by which the Maximum Credit exceeds the Revolving Credit Outstandings at such time; provided, however, that no Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Loan may be made that, after giving effect thereto, would result in a Borrowing Base Deficiency. The Swing Loan Lender shall be entitled to rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and (subject to Sections 2.6 and 2.9) shall be repaid upon any Borrowing of a Revolving Loan or from time to time shall not create any duty or obligation, or establish any course at the discretion of conduct, pursuant to which the Swing Loan Lender shall thereafter be obligated to make but in any event no later than the Scheduled Termination Date. Within the limits set forth in the first sentence of this Section 2.3(a), amounts of Swing Loans in the futurerepaid may be reborrowed under this Section 2.3(a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the relevant Borrower shall telecopy to the contrary provided for herein, Swing Loan Lender may not make a duly completed request setting forth the requested amount and date of the Swing Loan Advances if (a “Swing Loan Request”), to be received by the Swing Loan Lender has been notified by Agent or by Required Lenders not later than 1:00 p.m. (New York City time) on the day of the proposed Borrowing. Subject to the terms of this Agreement, the Swing Loan Lender shall make its Swing Loan available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from any Lender that one or more of the applicable conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender may demand at any time that each Lender pay to the Swing Loan Lender (for its account), in the manner provided in subsection (d) below, such Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) Each demand referred to in clause (c) above to each Lender shall be accompanied by a statement prepared by the Swing Loan Lender specifying the amount of each Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 shall have been satisfied (which conditions precedent the Lenders for this purpose hereby irrevocably waive), each Lender shall, before or after 11:00 a.m. (New York City time) on the Business Day next succeeding the date of such Lender’s receipt of such written statement, make available to the Swing Loan Lender, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the applicable Borrower. The Swing Loan Lender shall use such funds to repay the Swing Loans owing to it. To the extent that any Lender fails to make such payment available to the Swing Loan Lender, the applicable Borrower shall repay such Swing Loan on demand.
(e) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 9.1(g), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (d) above, which participation shall be in a principal amount equal to such Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (d) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender’s Ratable Portion of such Swing Loan. If such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover such amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(f) hereof. From and after the date, if any, date on which any Revolving Lender is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (d) above with respect to any Swing Loans purchased hereunderLoan or purchases an undivided participation interest in a Swing Loan pursuant to clause (e) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofd) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (e) above.
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Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that agrees to make loans denominated in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances Dollars (“Swing Loans”each a "SWING LOAN") otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Revolving Credit Facility from time to time after on any Business Day during the period from the Closing Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall at any time not to exceed an amount equal to the lesser of (ix) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or Swing Loan Commitment and (iiy) the Formula AmountAvailable Credit at such time. All Each Swing Loans Loan shall be Domestic a Base Rate Loans onlyLoan and shall mature on the Scheduled Termination Date. Borrowers may borrow (at Within the option and election limits set forth in the first sentence of Swing Loan Lenderthis Section 2.3(a), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making amounts of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter repaid may be obligated to make Swing Loans in the futurereborrowed under this Section 2.3(a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy to the contrary provided for hereinSwing Loan Lender, with a copy to the Administrative Agent, a duly completed request setting forth the date, the requested amount and date of the Swing Loan (a "SWING LOAN REQUEST"), to be received by the Swing Loan Lender may not make Swing Loan Advances if later than 1:00 p.m. (New York City time) on the day of the proposed borrowing. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by Agent or by Required Lenders shall make a Swing Loan available to the Borrower not later than 3:00 p.m. (New York City time) on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from any Lender that one or more of the applicable conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 hereof have not been satisfied in connection with the making of any Swing Loan. Each Swing Loan Borrowing shall be in an aggregate amount equal to $500,000 or the Revolving Commitments have been terminated for any reasonan integral multiple of $100,000 in excess thereof.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (which writing may be by a telecopy or electronic mail) weekly, by no later than 10:00 a.m. (New York City time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time during the continuance of an Event of Default that each Revolving Credit Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in subsection (e) below, such Revolving Credit Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each demand referred to in clause (d) above to each Revolving Credit Lender on the day such demand is received by the Administrative Agent (except that any such demand received by the Administrative Agent after 10:00 a.m. (New York City time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender's Ratable Portion of the aggregate principal amount of the Swing Loans demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 shall have been satisfied (which conditions precedent the Revolving Credit Lenders hereby irrevocably waive), each Revolving Credit Lender shall, before or after 2:00 p.m. (New York City time) on the same Business Day as the date of such Revolving Credit Lender's receipt of such written statement, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Revolving Credit Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 7.1(f), each Revolving Credit Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderpurchase, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Revolving Credit Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Revolving Credit Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Revolving Credit Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its such Revolving Commitment PercentageCredit Lender's Ratable Portion of such Swing Loan. If such amount is not in fact made available by such Revolving Credit Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover such amount on demand from such Revolving Credit Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Effective Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Credit Lender (i) is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Revolving Credit Lender its such Revolving Commitment Percentage Credit Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Loan other than those received from a Revolving Credit Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Amendment and Restatement Date to, but not including, the last day of the TermMaturity Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured second amended and restated promissory note (the “by Borrowers in favor of Swing Loan Note”) Lender substantially in the form attached as Exhibit 2.4(a) heretohereto (the “Swing Loan Note”). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereof. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 2.22 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have such request or deemed request treated the Borrower under the Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to exceed the Swing Loan Sublimit; provided, however, that at no time shall the Swing Loan Lender make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within seven days after its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request for a Swing Loan, the Borrower shall telecopy (or forward by electronic mail or similar means) to the Administrative Agent a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the CREDIT AGREEMENT CONSTAR INTERNATIONAL INC. requested amount and may advance same date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. (New York time) on the day funds to Borrowers as a of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender of the details of the requested Swing Loan; provided that notwithstanding anything . Subject to the contrary provided for hereinterms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Revolving Credit Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (whether before which writing may be a telecopy or after electronic mail) weekly, by no later than 10:00 a.m. (New York time) on the occurrence first Business Day of a Default or an Event each week, of Default and regardless the aggregate principal amount of whether a Settlement has been requested with respect to such its Swing Loan), Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving Credit Lender shall be deemedpay to the Administrative Agent, without further action by any party hereto, to have unconditionally and irrevocably purchased from for the account of the Swing Loan Lender, without recourse in the manner provided in clause (e) below, such Revolving Credit Lender’s Ratable Portion of all or warrantya portion of the outstanding Swing Loans, an undivided interest which demand shall be made through the Administrative Agent, shall be in writing and participation shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Revolving Credit Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such Swing Loan in proportion notice or demanded to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute be paid pursuant to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent demand, and, notwithstanding whether or not the conditions precedent set forth in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment Sections 3.2 (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have such request or deemed request treated the Borrower under the Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to exceed the Swing Loan Sublimit; provided, however, that at no time shall the Swing Loan Lender make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within fifteen days after its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a). AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION
(b) In order to request for a Swing Loan, the Borrower shall telecopy (or forward by electronic mail or similar means) to the Administrative Agent a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount and may advance same date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. (New York time) on the day funds to Borrowers as a of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender of the details of the requested Swing Loan; provided that notwithstanding anything . Subject to the contrary provided for hereinterms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Revolving Credit Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (whether before which writing may be a telecopy or after electronic mail) weekly, by no later than 10:00 a.m. (New York time) on the occurrence first Business Day of a Default or an Event each week, of Default and regardless the aggregate principal amount of whether a Settlement has been requested with respect to such its Swing Loan), Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving Credit Lender shall be deemedpay to the Administrative Agent, without further action by any party hereto, to have unconditionally and irrevocably purchased from for the account of the Swing Loan Lender, without recourse in the manner provided in clause (e) below, such Revolving Credit Lender’s Ratable Portion of all or warrantya portion of the outstanding Swing Loans, an undivided interest which demand shall be made through the Administrative Agent, shall be in writing and participation shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Revolving Credit Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such Swing Loan in proportion notice or demanded to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute be paid pursuant to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent demand, and, notwithstanding whether or not the conditions precedent set forth in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment Sections 3.2 (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Administrative Agent for administrative convenience, Administrative Agent, Lenders holding Revolving Lenders Commitments, and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 2.2 at any time or from time to time after the Closing Date date hereof to, but not including, the last day of the TermTermination Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount Credit Amount, less Reserves established hereunder less the Maximum Undrawn LC Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans onlyBorrowing Base. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 2.2 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future. For the avoidance of doubt and notwithstanding any Swing Loan Note delivered on the Effective Date or from time to time thereafter pursuant to this Section 2.2, the Swing Loan is not meant to and shall not increase or be duplicative of any amounts outstanding under the Maximum Revolving Credit Amount.
(b) Upon either (i) any request by Borrowing Agent Borrowers for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances Loans if Swing Loan Lender has been notified by Administrative Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof 7.2 of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment PercentageCommitment. Swing Loan Lender or Administrative Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof2.1(d). From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Administrative Agent shall promptly distribute to such Lender its Revolving Commitment Percentage pro rata share of all payments of principal and interest and all proceeds of Collateral received by Administrative Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Loan and Security Agreement (Applied Optoelectronics, Inc.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“"Swing Loans”") available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, ; provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note if requested by Swing Loan Lender (the “"Swing Loan Note”") substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s 's agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance of Domestic Rate Loans made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof), Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Revolving Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans (“each a "Swing Loans”Loan") otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Facility from time to time after on any Business Day during the Closing period from the date hereof until the Revolving Credit Termination Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and not to exceed $10,000,000; provided, however, that the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter not make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. The Swing Loan Lender shall be obligated entitled to make rely on the most recent Borrowing Base Certificate delivered to the Agent. Within the limits set forth in the first sentence of this Section 2.3(a), amounts of Swing Loans repaid may be reborrowed under this Section 2.3(a). Each Swing Loan Borrowing shall be in an aggregate amount of not less than $100,000. The Swing Loan Lender intends to settle all outstanding Swing Loans on the futuresecond Business Day of every week that the Borrower has material amounts of Swing Loans outstanding.
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy to the contrary provided for hereinAgent a duly completed request setting forth the date, the requested amount and date of the Swing Loan (a "Swing Loan Request"), to be received by the Agent not later than 2:00 P.M. (New York City time) on the day of the proposed Swing Loan Borrowing. The Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Agent or by Required Lenders which will make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from any Lender that one or more of the applicable conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Agent in writing (which may be by telecopy) daily, by no later than 10:00 A.M. (New York City time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Lender pay to the Agent, for the account of the Swing Loan Lender, in the manner provided in subsection (e) below, such Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Lender on the day such notice or such demand is received by the Agent (except that any such notice or demand received by the Agent after 2:00 P.M. (New York City time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Agent until the next succeeding Business Day), together with a statement prepared by the Agent specifying the amount of each Lender's Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Lender shall, before or after 11:00 A.M. (New York City time) on the Business Day next succeeding the date of such Lender's receipt of such written statement, make available to the Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the Borrower. The Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Lender fails to make such payment available to the Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 9.1(f), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender's Ratable Portion of such Swing Loan. If such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover such amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Lender is required deemed to fund, and funds, its participation in have made a Revolving Credit Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent a Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Swing Loans. (a) Subject In addition to the terms and conditions set forth in this Agreementforegoing, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or Wachovia shall from time to time after the Closing Funding Date tobut before the Maturity Date, but not including, upon the last day request of the TermBorrower, if the applicable conditions precedent in Article V have been satisfied, make Swing Loans to the Borrower in an aggregate principal amount up to but at any time outstanding not in excess of the Maximum exceeding $10,000,000; provided that, immediately after such Swing Loan Advance Amountis made, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of conditions set forth in clauses (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or and (ii) of Section 2.1(b) shall have been satisfied. Except for calculation of the Formula AmountCommitment Fee as set forth in the definition thereof, Swing Loans shall not be considered a utilization of the Revolving Credit Commitment of Wachovia or any other Lender hereunder. All Swing Loans shall be Domestic made as Base Rate Loans only. Borrowers may borrow or as LIBOR Index Loans; provided, however, that (at A) the option and election entire principal balance of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by at all times bear interest as either a secured promissory note LIBOR Index Loan or a Base Rate Loan; (the “B) while any Swing Loan Note”is outstanding all subsequent Swing Loans must bear interest at the same rate as the Swing Loans then outstanding; (C) substantially in the form attached as Exhibit 2.4(aBorrower may not convert any outstanding Swing Loans from Base Rate Loans to LIBOR Index Loans, or vice versa; (D) hereto. no Swing Loan Lender’s agreement to make shall constitute a LIBOR Index Loan for more than ten (10) succeeding Business Days; and (E) if any Swing Loan remains outstanding for more than ten (10) Business Days as a LIBOR Index Loan, then the entire principal balance of the Swing Loans under this Agreement shall, automatically and without notice to Borrower or any other Person, convert to a Base Rate Loan and, thereafter, bear interest as a Base Rate Loan. At any time, upon the request of Wachovia, each Lender other than Wachovia shall, on the third (3rd) Business Day after such request is cancelable made, purchase a participating interest in Swing Loans in an amount equal to its ratable share (based upon its respective Revolving Credit Commitment) of such Swing Loans. On such third (3rd) Business Day, each Lender will immediately transfer to Wachovia, in immediately available funds, the amount of its participation. Whenever, at any time for after Wachovia has received from any reason whatsoever such Lender its participating interest in a Swing Loan, the Agent receives any payment on account thereof, the Agent 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 making of Swing Loans event that such payment received by Swing Loan the Agent is required to be returned, such Lender from time will return to time the Agent any portion thereof previously distributed by the Agent to it. Each Lender's obligation to purchase such participating interests shall be absolute and unconditional and shall not create be affected by any duty or obligationcircumstance, or establish any course of conductincluding, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either without limitation: (i) any request by Borrowing Agent set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against Wachovia requesting such purchase or any other Person for a Revolving Advance made pursuant to Section 2.2(a) hereof or any reason whatsoever; (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence continuance of a Default or an Event of Default and regardless or the termination of whether a Settlement has been requested with respect to such Swing Loan), each the Revolving Lender shall be deemed, without further action Credit Commitments; (iii) the occurrence or existence of any Material Adverse Change or Material Adverse Effect or the existence or occurrence of any adverse change in the condition (financial or otherwise) of any other Person; (iv) any breach of any Credit Document by any party heretoCredit Party or any other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditforegoing.
Appears in 1 contract
Sources: Senior Secured Credit Facility (TransMontaigne Partners L.P.)
Swing Loans. (a) Subject to In lieu of making Revolving A Loans, the Swing Line Lender, in its sole discretion, on the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, may make swing loan advances loans (each a “Swing LoansLoan”) available to Borrowers as provided for in this Section 2.4 at any time or Borrower from time to time after until the Closing Revolving A Loan Maturity Date to, but not including, the last day of the Term, as provided herein in an aggregate principal amount up not to but not in excess of exceed at any time outstanding the Maximum Swing Loan Advance AmountAvailable Credit. Each Swing Loan shall be made and repaid upon such notice as the Swing Line Lender and Borrower shall agree, provided except that the outstanding aggregate principal amount of Swing Loans and may be made automatically (A) pursuant to certain cash management arrangements made from time to time by Borrower with Administrative Agent and/or (B) for the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amountpurposes described in Section 2.2(e). All Swing Loans shall be Domestic Base Rate Loans onlyand may, at Swing Line Lender’s option, be evidenced by a promissory note. Borrowers may borrow (at Borrower shall repay the option outstanding principal balance of the Swing Loans, together with all accrued and election of Swing unpaid interest and related fees on the Revolving A Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement DatesMaturity Date. All interest due on the Swing Loans shall be evidenced by a secured promissory note (payable to the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Line Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either On the first Business Day of each week, the Swing Loans outstanding as of the end of the immediately preceding Business Day shall be converted to Revolving A Loans, unless the amount outstanding was less than $10,000,000 (iin which event, such Swing Loans shall remain as Swing Loans). By 9:00 a.m. (Pacific Time) any request by Borrowing on the first Business Day of each week in which such a conversion is to occur, Administrative Agent for a shall notify each Lender of the principal amount of such outstanding Swing Loans and each Lender’s Revolving Advance made pursuant A Loan Commitment Percentage thereof. Each Lender shall, before 11:00 a.m. (Pacific Time) on such Business Day, make available to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may electAdministrative Agent, in immediately available funds, the amount of its sole discretion, to have Revolving A Loan Commitment Percentage of such request or deemed request treated as a request for a principal amount of such Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reasonLoans.
(c) Upon At any time upon the making request of a the Swing Line Lender to Administrative Agent that some or all of the Swing Loans be converted to Revolving A Loans, then, on the next Business Day, Administrative Agent shall notify each Lender of the principal amount of Swing Loans outstanding as of 9:00 a.m. (Pacific Time) on such Business Day (or of the principal amount of the Swing Loans which Swing Line Lender desires to be converted) and each Lender’s Revolving A Loan Commitment Percentage thereof. Each Lender shall, before 9:00 a.m. (whether before or after Pacific Time) on the occurrence next Business Day, make Columbia – Second Amended and Restated Credit Agreement available to Administrative Agent, in immediately available funds, the amount of a Default or an Event its Revolving A Loan Commitment Percentage of Default and regardless such principal amount of whether a Settlement has been requested with respect to such Swing LoanLoans.
(d) Upon any payment by a Lender pursuant to Section 2.2(b) or (c), each Revolving such Lender shall be deemed, without further action by any party hereto, deemed to have unconditionally made a Revolving A Loan as a Base Rate Loan to Borrower, notwithstanding any failure by Borrower to satisfy the conditions contained in Section 5.2 (without regard to the minimum amount of Base Rate Loans). Administrative Agent shall use such funds to repay the principal amount of Swing Loans to the Swing Line Lender. With respect to the Swing Loans, after receipt of payment of principal or interest thereon, Administrative Agent will promptly distribute the same to the Swing Line Lender at its Applicable Lending Office.
(e) Lenders and irrevocably purchased from Borrower agree that Swing Loan LenderLoans may be made to allow Administrative Agent to pay each Lender its share of fees, without recourse or warranty, an undivided interest and participation in other amounts due hereunder to the extent such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent mayfees, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditother amounts are then due and payable.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“"Swing Loans”") available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the sum of the aggregate Dollar Equivalent of the Maximum Undrawn Amount of all outstanding Letters of Credit, the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula AmountAvailability at such time. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “"Swing Loan Note”") substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s 's agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if (x) Borrowing Agent has requested a LIBOR Rate Loan or (y) Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.22) of the Dollar Equivalent of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Great Lakes Dredge & Dock CORP)
Swing Loans. In the case of a Revolver Loan and so long as any of (ai) Subject the aggregate amount of Swing Loans made since the last Settlement Date, minus all payments or other amounts applied to Swing Loans since the terms and conditions set forth in this Agreementlast Settlement Date, and in order to minimize plus the transfer amount of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and the requested Swing Loan Lender agree that in order to facilitate the administration of this Agreementdoes not exceed $1,000,000, or (ii) Swing Loan Lender mayLender, at its election and option made in its sole discretion cancelable at discretion, agrees to make a Swing Loan notwithstanding the foregoing limitation, Swing Lender shall make a Revolver Loan (any time for any reason whatsoever, make swing loan advances (such Revolver Loan made by Swing Lender pursuant to this Section 2.01(b) being referred to as a “Swing Loan” and all such Revolver Loans being referred to as “Swing Loans”) available to Borrowers as provided for on the funding date applicable thereto by transferring immediately available funds in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day amount of the Term, in an aggregate principal amount up to but not in excess of the Maximum such Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal as directed by Borrowers pursuant to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amountapplicable Borrowing Request. All Each Swing Loans Loan shall be Domestic Rate Loans only. Borrowers may borrow deemed to be a Revolver Loan hereunder and shall be subject to all the terms and conditions (at the option and election of including Article IV) applicable to other Revolver Loans, except that all payments (including interest) on any Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “payable to Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) heretoLender solely for its own account. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant Subject to the provisions of Section 2.2(a) hereof2.01(a)(iv), Swing Loan Lender may elect, in its sole discretion, shall not make and shall not be obligated to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, make any Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders actual knowledge that (i) one or more of the applicable conditions precedent set forth in Section 8.2 hereof Article IV will not be satisfied on the requested funding date for the applicable Swing Loan, or (ii) the requested Swing Loan would exceed the Revolver Availability on such funding date. Swing Lender shall not otherwise be required to determine whether the applicable conditions precedent set forth in Article IV have not been satisfied or on the Revolving Commitments have been terminated for funding date applicable thereto prior to making any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender . The Swing Loans shall be deemedsecured by Administrative Agent’s Liens, without further action by any party hereto, to have unconditionally constitute Revolver Loans and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fundObligations, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute bear interest at the rate applicable from time to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event time to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of CreditRevolver Loans.
Appears in 1 contract
Sources: Loan and Security Agreement (Lulu's Fashion Lounge Holdings, Inc.)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have such request or deemed request treated the Borrower under the Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to exceed the Swing Loan Sublimit; provided, however, that at no time shall the Swing Loan Lender make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. Each Swing Loan shall be a Base Rate Loan and must be repaid in full upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request for a Swing Loan, the Borrower shall telecopy (or forward by electronic mail or similar means) to the Administrative Agent a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount and may advance same date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. (New York time) on the day funds to Borrowers as a of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender of the details of the requested Swing Loan; provided that notwithstanding anything . Subject to the contrary provided for hereinterms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders (including at the request of any Lender) that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (whether before which writing may be a telecopy or after electronic mail) weekly, by no later than 10:00 a.m. (New York time) on Thursday of each week (or if such day is not a Business Day, the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loannext succeeding Business Day), of the aggregate principal amount of its Swing Loans then outstanding, and each Revolving Lender shall be deemedpay its Ratable Portion of such amount to the Administrative Agent, without further action by any party hereto, to have unconditionally and irrevocably purchased from for the account of the Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan the manner provided in proportion to its Revolving Commitment Percentage. clause (e) below.
(d) The Swing Loan Lender or Agent may, may demand at any time that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (e) below, such Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York time, require the Revolving Lenders to fund ) on any Business Day or any such participations by means of notice or demand received on a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender day that is not a Business Day shall not be required to fundbe forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), and funds, its participation in any together with a statement prepared by the Administrative Agent specifying the amount of each Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans purchased hereunder, Agent shall promptly distribute stated to be outstanding in such notice or demanded to be paid pursuant to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent demand, and, notwithstanding whether or not the conditions precedent set forth in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment Sections 3.2 (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (Tekni Plex Inc)
Swing Loans. (a) Subject to all of the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this AgreementAgreement (including, Swing Loan Lender maywithout limitation, at its election Section 5.1 and option made in its sole discretion cancelable at any time for any reason whatsoever5.2 hereof), make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time on or after the Closing Effective Date toand during the Swing Loan Availability Period, but not including, the last day of the Term, Swing Lender shall make loans under this Section 2.1(b) to Borrower in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding up to but not exceeding $50,000,000. Swing Loans shall constitute “Loans” for all purposes hereunder, except that such Swing Loans shall not be considered a utilization of the Commitment of Swing Lender or any other Revolving Loan Lender for purposes of calculating commitment fees hereunder. Notwithstanding the foregoing sentence, the aggregate amount of all Loans (including, without limitation, all Swing Loans) plus all Letter of Credit Liabilities shall not at any time exceed the then-current aggregate amount of the Commitments. Subject to the conditions in this Agreement, any Swing Loan repaid prior to the Revolving Loan Termination Date may be reborrowed pursuant to the terms of this Agreement; provided, that any and all such Swing Loans shall be due and payable in full at the end of the Swing Loan Availability Period. At any time, upon the request of the Swing Lender, each Revolving Loan Lender (other than the Swing Lender) shall, on the first Business Day after such request is made, purchase a participating interest in any one or more Swing Loans made in accordance with the first sentence of this Section 2.1(b) in an amount equal to the lesser its Revolving Loan Commitment Percentage of (i) the Maximum such Swing Loans. Each Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make will immediately transfer to the Swing Loans as provided Lender, in this Section 2.4 during immediately available funds, the period between Settlement Datesamount of its participation. All Whenever, at any time after the Swing Loans shall be evidenced by a secured promissory note (the “Swing Lender has received from any Revolving Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Lender such Revolving Loan Lender’s agreement participation in a Swing Loan, the Swing Lender receives payment on account thereof, the Swing Lender will distribute to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing such Revolving Loan Lender from its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Loan Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Lender is required to time be returned, such Revolving Loan Lender will return to the Swing Lender any portion thereof previously distributed by the Swing Lender to it. Each Revolving Loan Lender’s obligation to purchase such participation interest shall be absolute and unconditional and shall not create be affected by any duty or obligationcircumstance, or establish any course of conductincluding, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either without limitation, (i) any request by Borrowing Agent set-off, counterclaim, recoupment, defense of other right which such Revolving Loan Lender or any other Person may have against Swing Lender or any other Person for a Revolving Advance made pursuant to Section 2.2(a) hereof or any reason whatsoever; (ii) the occurrence or continuance of a Default or Event of Default or the termination of any deemed request Commitment; (iii) any adverse change in the condition (financial or otherwise) of Borrower or any Subsidiary of Borrower or any other Revolving Loan Lender; (iv) any breach of this Agreement or any other Loan Document by Borrowers for a Borrower or any other Revolving Advance pursuant Loan Lender, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the provisions of Section 2.2(a) hereof, foregoing. The Swing Loan Lender may elect, at any time in its sole discretionand absolute discretion may request, on behalf of Borrower (which hereby irrevocably authorizes Swing Lender to have so request on its behalf), that each Lender make a Revolving Loan (which shall be a Base Rate Loan) in an amount equal to such request or deemed request treated as a request for a Lender’s Revolving Loan Commitment Percentage of the amount of Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything Loans then outstanding (without regard to the contrary provided minimum and multiples specified therein for hereinthe principal amount of such Loans, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more but subject to the unutilized portion of the applicable Commitments and the conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan5.2), each Revolving . Each Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, make an undivided interest and participation in such Swing Loan in proportion amount equal to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect the amount of such Swing Loan; provided Loans available to Agent in immediately available funds for the account of Swing Lender at the Agent’s Principal Office not later than 1:00 p.m. on the day specified by Agent, whereupon, each Lender that no Revolving Lender so makes funds available shall be obligated deemed to have made a Revolving Loan to Borrower in any event such amount. Agent shall remit the funds so received to make Revolving Advances Swing Lender. Each Swing Loan shall be in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditequal to $100,000 or an integral multiple thereof.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions set forth of this Agreement, upon request of Borrower, the Swing Loan Lender agrees to make one or more ▇▇▇▇▇ ▇oans to Borrower from time to time from and including the Closing Date to but excluding the Swing Loan Maturity Date, up to but not exceeding the amount of the Swing Loan Lender's Swing Loan Commitment as then in effect. (Such swing loans referred to in this Section 2.01(f) now or hereafter made by the Swing Loan Lender to Borrower from and including and after the Closing Date are hereinafter collectively called the "Swing Loans.") Prior to the Swing Loan Maturity Date, Borrower may borrow, repay and reborrow Swing Loans up to the Swing Loan Commitment in accordance with the terms of this Agreement. The Swing Loan Lender shall not make any Swing Loans on or after the Swing Loan Maturity Date. Notwithstanding anything to the contrary contained in this Section 2.01(f) or elsewhere in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that shall not be obligated, pursuant to this Section 2.01(f) or otherwise, to make any Swing Loan to or for the account of Borrower, and Borrower shall not be entitled to borrow, pursuant to this Section 2.01(f), if, after giving full effect to the requested Swing Loan, the aggregate outstanding amount of Revolving Credit Loans, plus the aggregate outstanding amount of Swing Loans, plus the aggregate outstanding Letter of Credit Liabilities would exceed the aggregate amount of the Revolving Credit Commitments as in order effect at such time. Notwithstanding anything herein or elsewhere to facilitate the administration of this Agreementcontrary, the Swing Loans will be made and maintained only as ABR Loans. The Swing Loan Lender mayshall not make any Swing Loan after receiving a written notice from Borrower or the Majority Revolving Credit Lenders stating that a Default exists and is continuing until such time as the Swing Loan Lender shall have received written notice of (i) rescission of all such notices from the party or parties originally delivering such notice, at its election and option (ii) the waiver of such Default by the Majority Lenders, or (iii) Administrative Agent's good faith determination that such Default has ceased to exist. Swing Loans shall be made in minimum amounts of $500,000 and integral multiples of $500,000 above such amount. Upon the occurrence of a Default, each Revolving Credit Lender shall be deemed to have purchased (and each Revolving Credit Lender hereby irrevocably agrees to purchase on a pro rata basis (based upon each Revolving Credit Lender's Revolving Credit Commitment)) an irrevocable part▇▇▇▇▇▇ion in all outstanding Swing Loans, together with all accrued interest thereon, without any further action by or on behalf of the Swing Loan Lender, any other Lender, Borrower or any other Person. Upon one Business Day's notice from the Swing Loan Lender, each other Revolving Credit Lender shall deliver to the Swing Loan Lender an amount equal to its sole discretion cancelable respective participation in such Swing Loan (as determined pursuant to the immediately preceding sentence) in cash. In order to evidence such participation, each Revolving Credit Lender agrees to enter into a participation agreement at t▇▇ ▇▇▇uest of the Swing Loan Lender in form and substance satisfactory to the Swing Loan Lender and the Revolving Credit Lender. If any time Revolving Credit Lender fails to make available to the Swing Loan Lender the amount of such Revolving Credit Lender's participation as provided in this paragraph, the Swing Loan Lender shall be entitled to recover such amount on demand from such Revolving Credit Lender, together with interest thereon at the Federal Funds Rate until such amount is paid in full in cash. In the event the Swing Loan Lender receives a payment from Borrower or any other Obligor of any amount in which the Revolving Credit Lenders have purchased participations as provided in this paragraph, the Swing Loan Lender shall promptly distribute to each Revolving Credit Lender its pro rata share of such payment. Anything contained in this Agreement or otherwise to the contrary notwithstanding, (A) each Revolving Credit Lender's obligation to purchase a participation in each unpaid Swing Loan shall be absolute and unconditional and shall not be affected by any circumstances, including, without limitation, (1) any setoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may now or hereafter have against the Swing Loan Lender, Borrower or any other Person for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii2) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence continuation of a Default or an Event of Default and regardless Default, (3) any material adverse change in the condition of whether a Settlement has been requested with respect to such Swing Loan)Borrower or any Subsidiary, each Revolving Lender shall be deemed, without further action (4) any breach or default of this Agreement or any of the Security Documents by any party heretoPerson, or (5) any other circumstance, happening or event whatsoever, whether or not similar to have unconditionally any of the foregoing, and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. (B) the Swing Loan Lender or Agent may, at shall not have any time, require the Revolving Lenders obligation to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in make any Swing Loans purchased hereunder, Agent shall promptly distribute if (1) Borrower fails for whatever reason to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in satisfy any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditconditions precedent set forth in Section 7.02 or (2) any Revolving Credit Lender fails for whatever reason to comply with its obligations under this Section 2.01(f).
Appears in 1 contract
Sources: Credit Agreement (Pricellular Corp)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Revolving Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an the Dollar Equivalent of the amount equal to the lesser of (i) the Maximum Revolving Advance Amount Line Cap less the Dollar Equivalent of the aggregate Maximum Undrawn Amount of all outstanding Letters of Credit; nor shall the total sum of the Dollar Equivalent of the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding plus the Dollar Equivalent of the aggregate Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) at such time exceed the Formula AmountLine Cap at such time. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future2.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit, Guaranty and Security Agreement (Babcock & Wilcox Enterprises, Inc.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Revolving Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit less Reserves established hereunder as in effect at such time less Ex-Im Reserves established under the Ex-Im Credit Agreement as in effect at such time less the Ex-Im Subfacility Outstandings Amount at such time, or (ii) the Formula AmountAmount as in effect at such time. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto2.4. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (ix) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (iiy) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Revolving Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount outstanding at any time in excess of its Revolving Commitment Amount as in effect at such time minus its Participation Commitment (taking into account any reallocations under Section 2.23 2.22 hereof) of the Dollar Equivalent of the Maximum Undrawn Amount of all outstanding Letters of CreditCredit outstanding at such time minus its Ex-Im Revolving Commitment Percentage of the Ex-Im Subfacility Outstandings Amount at such time.
Appears in 1 contract
Sources: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dasan Zhone Solutions Inc)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans (“each a "Swing Loans”Loan") otherwise available to the Borrowers as provided for in this Section 2.4 at any time or under the Revolving Credit Facility from time to time after on any Business Day during the Closing period from the Covenant Reversion Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up at any time outstanding at any time not to but not in excess of the Maximum exceed $25,000,000. Each Swing Loan Advance Amountshall be a Base Rate Loan denominated in Dollars and must be repaid in full within seven days of its making or, provided that if sooner, upon any Revolving Credit Borrowing hereunder and shall in any event mature no later than the outstanding aggregate principal amount Revolving Credit Termination Date. Within the limits set forth in the first sentence of this Section 2.3(a), amounts of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall repaid may be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in reborrowed under this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future2.3(a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to the Borrowers as a Swing Loan; provided that notwithstanding anything shall telecopy to the contrary provided for hereinAdministrative Agent a duly completed request setting forth the date, the requested amount and date of the Swing Loan (a "Swing Loan Request"), to be received by the Administrative Agent not later than 1:00 p.m. (New York City time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent or by Required Lenders which will make such amounts available to the Borrowers on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from any Lender that one or more of the applicable conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon At any time one or more Swing Loans are outstanding, the making of a Swing Loan Lender shall notify the Administrative Agent in writing (which may be by telecopy) weekly, by no later than 10:00 a.m. (New York City time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving Credit Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (e) below, such Revolving Credit Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Revolving Credit Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York City time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender's Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 shall have been satisfied (which conditions precedent the Revolving Credit Lenders hereby irrevocably waive), each Revolving Credit Lender shall, before or after 11:00 a.m. (New York City time) on the Business Day next succeeding the date of such Revolving Credit Lender's receipt of such written statement, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the Borrowers. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Revolving Credit Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrowers shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 7.1(f), each Revolving Credit Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Revolving Credit Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Revolving Credit Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Revolving Credit Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its such Revolving Commitment PercentageCredit Lender's Ratable Portion of such Swing Loan. If such amount is not in fact made available by such Revolving Credit Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover such amount on demand from such Revolving Credit Lender together with interest accrued from such date at any time, require the Revolving Lenders Interbank Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Credit Lender is required deemed to fund, and funds, its participation in have made a Revolving Credit Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent a Swing Loan Lender shall promptly distribute to such Revolving Credit Lender its such Revolving Commitment Percentage Credit Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Loan other than those received from a Revolving Credit Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Swing Loans. (ai) Subject to Upon the terms and subject to the conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, each Swing Loan Lender mayagrees to make, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after during the Closing period from the Agreement Date toto but excluding the Termination Date, but not including, the last day one or more Swing Loans to each of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, Borrowers; provided that the outstanding aggregate unpaid principal amount of all Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to at any time the lesser of (iA) the Maximum Revolving Advance Amount less aggregate amount of Commitments at such time minus the Maximum Undrawn Amount aggregate unpaid principal amount of RC Loans and Bid Rate Loans outstanding at such time and (B) $20,000,000; provided, however, that neither Swing Loan Lender shall make Swing Loans to an individual Borrower if, after giving effect to such Swing Loans, the aggregate unpaid principal amount of all outstanding Letters of Credit or Loans to such Borrower would exceed such Borrower's Availability.
(ii) All Swing Loans shall be in an amount not less than $25,000 and shall be in an integral multiple of $10,000 and shall be made and maintained at a rate of interest per annum agreed upon by the Formula AmountSwing Loan Lender making such Swing Loan and the applicable Borrower. The applicable Borrower shall request a Swing Loan by giving the Agent and the applicable Swing Loan Lender notice thereof (which shall be irrevocable) by telephone, promptly confirmed in writing in the form of Schedule 1.01(c)(ii). All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (disbursed by the Swing Loan Lender making such Swing Loan in Dollars in funds immediately available to the applicable Borrower by credit to an account of such Borrower at the option and election of such Swing Loan Lender)'s Domestic Lending Office, repay or in such other manner as may have been specified by such Borrower and re-borrow as shall be acceptable to such Swing Loan Lender, on the day requested, if such telephonic request is received by the Agent and such Swing Loan Lender not later than 12:00 noon (at New York time) on such day, and if received thereafter on any Business Day, on the option next Business Day. Each Swing Loan Lender shall provide prompt notice to the Agent and election the Banks of the making of any Swing Loans to a Borrower.
(iii) If a Swing Loan Lender makes demand upon all of the Banks, whether before or after a Default, each Bank (other than such Swing Loan Lender) Swing Loans shall irrevocably and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender unconditionally purchase from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in the Swing Loans made by such Swing Loan Lender then outstanding, by paying to such Swing Loan Lender, without reduction or deduction of any kind, including but not limited to reductions or deductions for set-off, recoupment or counterclaim, in proportion Dollars immediately available at such Swing Loan Lender's Domestic Lending Office, an amount equal to its Revolving Commitment Percentage. such Bank's Pro Rata Share of the principal amount of all Swing Loans made by such Swing Loan Lender or Agent maythen outstanding, at and thereafter, except as otherwise provided in the second succeeding sentence, the Banks' respective interests in such Swing Loans, and the remaining interest of such Swing Loan Lender in such Swing Loans, shall in all respects be treated as Base Rate Loans under this Agreement, but such Swing Loans shall continue to be evidenced by the Swing Note, and shall continue to be due and payable by the applicable Borrower in accordance with Section 1.04(a). If any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on Bank does not pay any amount which any Revolving Lender it is required to fundpay after giving effect to the provisions of Section 1.01(c)(iv) forthwith upon the demand of a Swing Loan Lender as described above, such Swing Loan Lender shall be entitled to recover such amount on demand from such Bank, together with interest thereon, at the Federal Funds Rate for the first three Business Days, and fundsthereafter at the Base Rate plus 2%, its for each day from the date of such demand, if made prior to 2:00 p.m. (New York time) on any Business Day, or, if made at any other time, from the next Business Day following the date of such demand, until the date such amount is paid to such Swing Loan Lender by such Bank. If such Bank does not pay such amount forthwith upon the demand of a Swing Loan Lender as described above, and until such time as such Bank makes the required payment, such Swing Loan Lender's remaining interest in the applicable Swing Loan shall continue to include the amount of such unpaid participation obligation.
(iv) No Bank shall be obligated to purchase a participation in any Swing Loans purchased hereunderLoan unless (A) the applicable Swing Loan Lender believed in good faith that the conditions specified in Sections 2.02(b) and (c) were satisfied by the applicable Borrower at the time such Swing Loan was made or (B) such Bank had actual knowledge, Agent shall promptly distribute by receipt of information furnished to it pursuant to Section 5.01(e) hereof, or otherwise, that any such condition had not been satisfied and failed to notify the applicable Swing Loan Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral in a writing received by Agent in respect such Swing Loan Lender one Business Day prior to the time that it made such Swing Loan that such Swing Loan Lender was not authorized to make such Swing Loan or (C) the satisfaction of such Swing Loan; provided condition that no Revolving Lender shall be obligated was not satisfied had been waived in any event to make Revolving Advances in an amount in excess accordance with the provisions of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditthis Agreement.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make loans (each a "Swing Loan") otherwise available to have the Borrower under the Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate principal amount of any other Loans made by the Swing Loan Lender hereunder in its capacity as Lender or Swing Loan Lender) not to exceed the lesser of $5,000,000 and the Swing Loan Lender's Ratable Portion of the Available Credit; provided, however, that the Swing Loan Lender shall not make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. The Swing Loan Lender shall be entitled to rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within seven days of its making or, if sooner, upon any Revolving Credit Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy (or forward by electronic mail or similar means) to the contrary provided for hereinAdministrative Agent a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount and date of the Swing Loan (a "Swing Loan Request"), to be received by the Administrative Agent not later than 2:00 p.m. (New York time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (which writing may be a telecopy or electronic mail) weekly, by no later than 10:00 a.m. (New York time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (e), such Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid. SECOND AMENDED AND RESTATED CREDIT AGREEMENT AVIALL SERVICES, INC.
(e) The Administrative Agent shall forward each notice referred to in clause (c) and each demand referred to in clause (d) to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender's Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Lender shall, before or after 11:00 a.m. (New York time) on the Business Day next succeeding the date of such Lender's receipt of such written statement, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (f), be deemed to have made a Revolving Loan to the Borrower. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event under Section 9.1(g) (Events of Default and regardless of whether a Settlement has been requested with respect to such Swing LoanDefault), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (e), which participation shall be in a principal amount equal to such Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e), in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender's Ratable Portion of such Swing Loan. If such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover such amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Lender (i) is deemed to have made a Revolving Lender is required Loan pursuant to fund, and funds, its participation in clause (e) with respect to any Swing Loans purchased hereunderLoan or (ii) purchases an undivided participation interest in a Swing Loan pursuant to clause (f) , Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f).
Appears in 1 contract
Sources: Credit Agreement (Aviall Inc)
Swing Loans. (ai) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, during the Commitment Period applicable to the Revolving Credit Commitment, (A) other than for any Swing Loans automatically funded into a disbursement account pursuant to a “sweep” cash arrangement among the Borrowers and the Agent, the Swing Line Lender shall make a Swing Loan Lender mayor Swing Loans to the Borrowers in such amount or amounts as the Borrowers, at its election and option made in its sole discretion cancelable at any time for any reason whatsoeverthrough an Authorized Officer, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or may from time to time after request and to which the Closing Date toSwing Line Lender may agree, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (iB) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Line Lender may elect, in its sole discretion, to have such request or deemed request treated as automatically fund Swing Loans into a request for disbursement account of the Borrowers pursuant to a Swing Loan, “sweep” cash arrangement among the Borrowers and may advance same day funds to Borrowers as a Swing Loanthe Agent; provided that notwithstanding anything the Borrowers shall not request pursuant to subpart (A) above, and the Swing Line Lender shall not elect to make pursuant to subpart (B) above, any Swing Loan if, after giving effect thereto, (1) the Revolving Credit Exposure would exceed the Revolving Credit Commitment, or (2) the Swing Line Exposure would exceed the Swing Line Commitment. Each Swing Loan shall be due and payable on the Swing Loan Maturity Date applicable thereto. Each Swing Loan shall be made in Dollars.
(ii) If the Swing Line Lender so elects, by giving notice to the contrary provided for herein, Borrowing Agent and the Revolving Loan Lenders (a “Notice of Swing Loan Refunding”), the Borrowers agree that the Swing Line Lender may not make shall have the right, in its sole discretion, to require that the then outstanding Swing Loans be refinanced as a Revolving Loan. Such Revolving Loan shall be a Base Rate Loan unless otherwise requested by and available to the Borrowers hereunder. Upon receipt of such Notice of Swing Loan Advances Refunding by the Borrowing Agent and the Revolving Loan Lenders, the Borrowers shall be deemed, on such day, to have requested a Revolving Loan in the principal amount of such Swing Loan in accordance with Section 2.1A hereof. Such Revolving Loan shall be evidenced by the Revolving Credit Notes in the form attached hereto as Exhibit G (or, if Swing a Revolving Loan Lender has been notified not requested a Revolving Credit Note, by Agent or by Required Lenders that one or more the records of the applicable conditions set forth in Section 8.2 hereof have Agent and such Revolving Loan Lender). Each Revolving Loan Lender agrees that its payment to the Agent, for the account of the Swing Line Lender, of the proceeds of such Revolving Loan shall be made without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether or not been satisfied or the Revolving Commitments Credit Commitment shall have been terminated reduced or terminated. The Borrowers irrevocably authorize and instruct the Agent to apply the proceeds of any borrowing pursuant to this Section 2.1A(3)(ii) to repay in full such Swing Loan. Each Revolving Loan Lender is hereby authorized to record on its records relating to its Revolving Credit Note (or, if such Revolving Loan Lender has not requested a Revolving Credit Note, its records relating to Revolving Loans) such Revolving Loan Lender’s pro rata share of the amounts paid to refund such Swing Loan.
(iii) If, for any reason.
(c) Upon , the making Swing Line Lender is unable to or, in the opinion of the Agent, it is impracticable to, convert any Swing Loan to a Revolving Loan as a consequence of a Notice of Swing Loan Refunding pursuant to the preceding Section 2.1A(3)(ii), then on any day that a Swing Loan is outstanding (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanmaturity thereof), the Agent shall have the right to request that each Revolving Loan Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and fund a participation in such Swing Loan in proportion to its Revolving Commitment Percentage. which such Notice of Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fundRefunding relates, and funds, its participation in any Swing Loans purchased hereunder, the Agent shall promptly distribute notify each Revolving Loan Lender thereof (by email (confirmed by telephone) or telephone (confirmed in writing). Upon such notice, but without further action, the Swing Line Lender hereby agrees to grant to each Revolving Loan Lender, and each Revolving Loan Lender hereby agrees to acquire from the Swing Line Lender, an undivided participation interest in the right to share in the payment of such Swing Loan in an amount equal to such Lender its Revolving Loan Lender’s Applicable Commitment Percentage of all payments of the principal and interest and all proceeds of Collateral received by Agent in respect amount of such Swing Loan; . In consideration and in furtherance of the foregoing, each Revolving Loan Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided that no above, to pay to the Agent, for the benefit of the Swing Line Lender, such Revolving Loan Lender’s ratable share of such Swing Loan (determined in accordance with such Revolving Loan Lender’s Applicable Commitment Percentage). Each Revolving Loan Lender shall be obligated in any event to make Revolving Advances in an amount in excess comply with its obligation under this Section 2.1A(3)(iii) by wire transfer of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditimmediately available funds.
Appears in 1 contract
Swing Loans. (a) Subject to During the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate Effective Period, the administration of this AgreementSwingline Lender, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoeverdiscretion, may make swing loan advances loans (“each a "Swing Loans”Loan") available to Borrowers as provided for in this Section 2.4 at any time or from time to time after on the Closing Date to, but not including, terms and subject to the last day of the Term, conditions contained in this Agreement in an aggregate principal amount up not to but not in excess of the Maximum exceed $4,000,000 at any time outstanding. Each Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at made and prepaid upon such notice as the option Swingline Lender and election of Swing Loan Lender)Borrowers' Agent shall agree, repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Swingline Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dateswithout notice from Borrowers' Agent or any Borrower (A) automatically pursuant to cash management arrangements, if any, made from time to time by Borrowers' Agent with Swingline Lender and/or (B) to allow Administrative Lender to pay each Lender its share of fees, interest and other amounts then due and payable. All Swing Loans shall be evidenced by a secured promissory note (Note payable to the “Swing Loan Note”) substantially in order of the form attached as Exhibit 2.4(a) heretoSwingline Lender. Swing Loan Lender’s agreement Subject to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever all the limitations, terms and the making of Swing Loans by Swing Loan Lender conditions contained herein, Borrowers may from time to time borrow, partially or wholly repay outstanding Swing Loans and reborrow Swing Loans. Borrower shall not create any duty repay the outstanding principal balance of the Swing Loans, together with all accrued and unpaid interest and related fees, on the earlier of the Revolver Maturity Date or obligation, or establish any course termination of conduct, pursuant to which the Swing Loan Lender shall thereafter be obligated to make Effective Period. All interest due on the Swing Loans in shall be payable to the futureSwingline Lender. If Administrative Lender receives payment of principal or interest on the Swing Loans, it will promptly distribute such payment to the Swingline Lender.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) termination of the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Effective Period, Administrative Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan shall notify each Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or principal balance of the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.of
Appears in 1 contract
Sources: Credit Agreement (Penford Corp)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans (each a “Swing LoansLoan”) otherwise available to the Borrowers as provided for in this Section 2.4 at any time or under the Facility from time to time after on any Business Day during the Closing period from the date hereof until the Revolving Credit Termination Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of at any time outstanding (together with the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and any other loans made by the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at Lender hereunder in its capacity as a Lender or the option and election of Swing Loan Lender) Swing Loans at any time not to exceed the lesser of $20,000,000 and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable Ratable Portion of the Available Credit at any time for any reason whatsoever and such time; provided, however, that the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter not make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. The Swing Loan Lender shall be obligated entitled to make rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within seven days of its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this Section 2.3(a) amounts of Swing Loans in the futurerepaid may be reborrowed under this Section 2.3(a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Administrative Borrower shall telecopy to the contrary provided for hereinAdministrative Agent a duly completed request setting forth the date, the requested amount and date of the Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 12:00 p.m. (New York City time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loan Advances if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified by shall make a Swing Loan available to the Administrative Agent which will make such amounts available to the Borrowers on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from any Lender or by Required Lenders the Administrative Agent (if a Person other than the Swing Loan Lender) that one or more of the applicable conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied or waived. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon The Swing Loan Lender shall notify the making Administrative Agent in writing (which may be by telecopy) weekly, by no later than 10:00 a.m. (New York City time) on the first Business Day of each week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time during the continuance of an Event of Default that each Lender pay to the Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in subsection (e) below, such Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York City time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive) provided that the Swing Loan Lender has not received the notice referred to in the penultimate sentence of clause (b) above prior to any such Swing Loan (whether and the condition referred to in such notice has not been waived in accordance with this Agreement), each Lender shall, before or after 11:00 a.m. (New York City time) on the Business Day next succeeding the date of such Lender’s receipt of such written demand, make available to the Administrative Agent, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such demand. Upon such payment by a Lender, such Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the Borrowers. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender. To the extent that any Lender fails to make such payment available to the Administrative Agent for the account of the Swing Loan Lender, the Borrowers shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 8.1(f), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (e) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender’s Ratable Portion of such Swing Loan. If all or part of such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(g) hereof. From and after the date, if any, date on which any Revolving Lender is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (e) above with respect to any Swing Loans purchased hereunderLoan or purchases an undivided participation interest in a Swing Loan pursuant to clause (f) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofe) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have such request or deemed request treated the Borrower under the Revolving Credit Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Loan made by the Swing Loan Lender hereunder in its capacity as a Lender or the Swing Loan Lender) not to exceed the lesser of the Available Credit and the CREDIT AGREEMENT KNOLOGY, INC. Swing Loan Sublimit. Each Swing Loan shall be a Base Rate Loan and shall be repaid no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall provide to the contrary provided for hereinSwing Loan Lender a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount and date of such Swing Loan (a “Swing Loan Request”). Subject to the terms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Revolving Credit Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), Lender may demand at any time that each Revolving Credit Lender shall be deemedpay to the Administrative Agent, without further action by any party hereto, to have unconditionally and irrevocably purchased from for the account of the Swing Loan Lender, without recourse in the manner provided in clause (e) below, such Revolving Credit Lender’s Ratable Portion of all or warrantya portion of the outstanding Swing Loans, an undivided interest which demand shall be made through the Administrative Agent, shall be in writing and participation shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) The Administrative Agent shall forward each demand referred to in clause (c) above to each Revolving Credit Lender on the day such Swing Loan in proportion demand is received by the Administrative Agent (except that any such demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a notice specifying the amount of each Revolving Credit Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans demanded to fund be paid pursuant to such participations by means of a Settlement as provided for demand, and, notwithstanding whether or not the conditions precedent set forth in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment 3.2 (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (Knology Inc)
Swing Loans. (a) Subject to During the term of this Agreement, the Swing Lender agrees, on the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order make advances to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available Borrower pursuant to Borrowers as provided for in this Section 2.4 at any time or from time to time after in amounts such that (i) the Closing Date to, but aggregate of such advance and amount of Swing Loans theretofore advanced and still outstanding does not including, at any time exceed the last day Swing Loan Commitment and (ii) the amount of such advance does not exceed the Term, Available Total Loan Commitment. Each advance under this Section shall be in an aggregate principal amount up to but not of $1,000,000 or a larger multiple of $100,000 (except that any such advance may be in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal available amount of Swing Loans and determined in accordance with the Revolving Advances at any one time outstanding shall not exceed an amount equal immediately preceding sentence). With the foregoing limits, Borrower may borrow under this Section, repay or, to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender)extent permitted by Section 2.09, repay and re-borrow (at the option and election of Swing Loan Lender) prepay Swing Loans and Swing Loan Lender may make Swing Loans as provided in reborrow under this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and during the making term of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the futurethis Agreement.
(b) Upon either The Swing Lender shall, on behalf of Borrower (which hereby irrevocably directs the Swing Lender to act on its behalf), on notice given by the Swing Lender no later than 1:00 p.m. (New York time) on the Banking Day immediately following the funding of any Swing Loan, request each Bank to make, and each Bank hereby agrees to make, an advance of its Ratable Loan, in an amount (with respect to each Bank, its "Swing Loan Refund Amount") equal to such Bank's Pro Rata Share of the aggregate principal amount of the Swing Loans (the "Refunded Swing Loans") outstanding on the date of such notice, to repay the Swing Lender. Unless any of the events described in paragraph (5) of Section 9.01 with respect to Borrower shall have occurred and be continuing (in which case the procedures of paragraph (c) of this Section shall apply), each Bank shall make such advance of its Ratable Loan available to Administrative Agent at Administrative Agent's Office in immediately available funds, not later than 1:00 p.m. (New York time), on the third Banking Day immediately following the date of such notice. Administrative Agent shall pay the proceeds of such advance of Ratable Loans to the Swing Lender, which shall immediately apply such proceeds to repay Refunded Swing Loans. Effective on the day such advances of Ratable Loans are made, the portion of the Swing Loans so paid shall no longer be outstanding as Swing Loans, shall no longer be due as Swing Loans under the Swing Loan Note held by the Swing Lender, and shall be due as Ratable Loans under the respective Ratable Loan Notes issued to the Banks (including the Swing Lender). Borrower authorizes the Swing Lender to charge Borrower's accounts with Administrative Agent (up to the amount available in each such accounts) in order to immediately pay the amount of such Refunded Swing Loans to the extent amounts received from the Banks are not sufficient to repay in full such Refunded Swing Loans.
(c) If, prior to the time advances of Ratable Loans would have otherwise been made pursuant to paragraph (b) of this Section, one of the events described in paragraph (5) of Section 9.01 with respect to the Borrower shall have occurred and be continuing, each Bank shall, on the date such advances were to have been made pursuant to the notice referred to in paragraph (b) of this Section (the "Refunding Date"), purchase an undivided participating interest in the Swing Loans in an amount equal to such Bank's Swing Loan Refund Amount. On the Refunding Date, each Bank shall transfer to the Swing Lender, in immediately available funds, such Bank's Swing Loan Refund Amount, and upon receipt thereof, the Swing Lender shall deliver to such Bank a Swing Loan participation certificate dated the date of the Swing Lender's receipt of such funds and in the Swing Loan Refund Amount of such Bank.
(d) Whenever, at any time after the Swing Lender has received from any Bank such Bank's Swing Loan Refund Amount pursuant to paragraph (c) of this Section, the Swing Lender receives any payment on account of the Swing Loans in which the Banks have purchased Participations pursuant to said paragraph (c), the Swing Lender will promptly distribute to each such Bank its ratable share (determined on the basis of the Swing Loan Refund Amounts of all of the Banks) of such payment (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 Lender is required to be returned, such Bank will return to the Swing Lender any portion thereof previously distributed to it by the Swing Lender.
(e) Each Bank's obligation to transfer the amount of a Loan to the Swing Lender as provided in paragraph (b) of this Section or to purchase a participating interest pursuant to paragraph (c) of this Section shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof set-off, counterclaim, recoupment, defense or other right which such Bank, Borrower or any other Person may have against the Swing Lender or any other Person, (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence continuance of a Default or an Event of Default, the termination or reduction of the Loan Commitments or the non-satisfaction of any condition precedent to the making of any advance of the Loans, (iii) any adverse change in the condition (financial or otherwise) of Borrower or any other Person, (iv) any breach of this Agreement by Borrower, any other Bank or any other Person or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(f) Notwithstanding anything above in this Section or elsewhere in this Agreement to the contrary, in the event that the Swing Lender funds a Swing Loan hereunder when it has actual knowledge that a monetary Default, or material Event of Default (which, for the avoidance of doubt shall include any violation of any provision of Article VII or Article VIII) has occurred and regardless of whether a Settlement has been requested with respect to such Swing Loan)is continuing, each Revolving Lender the Banks shall be deemedhave the option, without further action by any party heretobut not the obligation, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in make Ratable Loans to fund their ratable shares of such Swing Loan as contemplated in proportion paragraph (b) of this Section or to its Revolving Commitment Percentage. Swing Loan Lender or Agent maypurchase Participations as contemplated in paragraph (c) of this Section.
(g) For purposes of Article III, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event deemed to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditbe LIBOR Loans.
Appears in 1 contract
Sources: Revolving Loan Agreement (Avalonbay Communities Inc)
Swing Loans. (ai) Subject In addition to the terms and conditions set forth in this Agreementforegoing, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or Wachovia shall from time to time after time, upon the Closing Date to, but not including, the last day request of the TermBorrower, if the applicable conditions precedent in Article III have been satisfied, make Swing Loans to the Borrower in an aggregate principal amount up to but at any time outstanding not in excess of the Maximum exceeding $15,000,000; provided that, immediately after such Swing Loan Advance Amountis made, provided that the outstanding conditions set forth in clause (ii) of Section 2.01(a) shall have been satisfied. Each Swing Loan Borrowing under this Section 2.01(b) shall be in an aggregate principal amount of Swing Loans $100,000 or any larger multiple of $25,000. Within the foregoing limits, the Borrower may borrow under this Section 2.01(b), prepay and the Revolving Advances reborrow under this Section 2.01(b) at any one time outstanding shall not exceed an amount equal to before the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula AmountTermination Date. All Swing Loans shall be Domestic made as Base Rate Loans only. Borrowers may borrow or, subject to the provisions of clause (at the option and election of Swing Loan Lender)ii) below, repay and re-borrow Transaction Rate Loans.
(at the option and election of Swing Loan Lenderii) Swing Loans may be Transaction Rate Loans, if the Administrative Agent shall have determined that such Transaction Rate Loan, including the principal amount thereof, the Interest Period and Swing Loan Lender the Transaction Rate applicable thereto, has been expressly agreed to by the Borrower and Wachovia (such agreement may be obtained by telephone, confirmed promptly to the Administrative Agent in writing) pursuant to the following procedures. If the Borrower desires a Transaction Rate Loan, (a) the Borrower shall provide Wachovia, with a copy to the Administrative Agent, with notice of a request (a "Transaction Rate Request") for a quote for a Transaction Rate Borrowing prior to 1:00 p.m. (Atlanta, Georgia time) on the date (which shall be a Domestic Business Day) of the proposed Transaction Rate Borrowing, which Transaction Rate Request shall include the principal amount and proposed Interest Period of the relevant Transaction Rate Borrowing, (b) prior to 1:30 p.m. (Atlanta, Georgia time) on such date, Wachovia shall furnish the Borrower, with a copy to the Administrative Agent, with its rate quote (a "Transaction Rate Quote") via facsimile transmission, (c) the Borrower shall immediately inform Wachovia and the Administrative Agent of its decision as to whether to request a Transaction Rate Borrowing at the Transaction Rate specified in such Transaction Rate Quote (a "Transaction Rate") (which may be done by telephone and promptly confirmed in writing, and which decision shall be irrevocable), and (d) if the Borrower has so informed Wachovia and the Administrative Agent that it does desire a Transaction Rate Borrowing at the Transaction Rate specified in such Transaction Rate Quote, then by 2:00 p.m. (Atlanta, Georgia time) on the date of such decision, Wachovia shall make such Transaction Rate Borrowing, with interest accruing thereon at such Transaction Rate, available to the Administrative Agent in accordance with the procedures set forth herein. The Administrative Agent shall notify the Banks of any Transaction Rate Borrowing pursuant hereto.
(iii) At any time, upon the request of Wachovia, each Bank other than Wachovia shall, on the third Domestic Business Day after such request is made, purchase a participating interest in Swing Loans as provided in this Section 2.4 during an amount equal to its ratable share (based upon its respective Commitment) of such Swing Loans. On such third Domestic Business Day, each Bank will immediately transfer to Wachovia, in immediately available funds, the period between Settlement Datesamount of its participation. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable Whenever, at any time for after Wachovia has received from any reason whatsoever such Bank its participating interest in a Swing Loan, the Administrative Agent receives any payment on account thereof, the Administrative Agent 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 making of Swing Loans event that such payment received by Swing Loan Lender from time the Administrative Agent is required to time be returned, such Bank will return to the Administrative Agent any portion thereof previously distributed by the Administrative Agent to it. Each Bank's obligation to purchase such participating interests shall be absolute and unconditional and shall not create be affected by any duty or obligationcircumstance, or establish any course of conductincluding, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either without limitation: (i) any request by Borrowing Agent set-off, counterclaim, recoupment, defense or other right which such Bank or any other Person may have against Wachovia requesting such purchase or any other Person for a Revolving Advance made pursuant to Section 2.2(a) hereof or any reason whatsoever; (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence continuance of a Default or an Event of Default and regardless or the termination of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by the Commitments; (iii) any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse adverse change in the condition (financial or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereofotherwise) of the Maximum Undrawn Amount Borrower, the Parent or any other Person; (iv) any breach of all outstanding Letters this Agreement by the Borrower or any other Bank; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of Creditthe foregoing.
Appears in 1 contract
Sources: Credit Agreement (Russell Corp)
Swing Loans. (a) Subject to the terms and conditions hereof and relying upon the representations and warranties herein set forth in this Agreementforth, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender)borrow, repay and re-borrow (at the option and election of Swing Loan Lender) reborrow Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (ix) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (iiy) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof of this Agreement have not been satisfied or the commitments of Revolving Commitments Lenders to make Revolving Advances hereunder have been terminated for any reasonreasons.
(c) Upon the making of a Swing Loan Advance (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereoftheir participations. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Revolving Lender its Revolving Commitment Credit Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) Ratable Share of the Maximum Undrawn Amount of all outstanding Letters of Credit. Agent, on behalf of Swing Loan Lender, shall demand settlement (a “Settlement”) with Revolving Lenders on at least a weekly basis or on any more frequent date that Agent elects or Swing Loans Lender at its option exercisable for any reason whatsoever may request, by notifying Revolving Lenders of such requested Settlement by facsimile, telephone or electronic transmission no later than 12:00 Noon on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender shall transfer the amount of such Revolving Lender’s Ratable Share of the outstanding principal amount of the applicable Swing Loan (plus, if Swing Loan Lender so requests, accrued interest thereon) with respect to which Settlement is requested to Agent, to such account of Agent as Agent may designate, not later than 3:00 p.m. on such Settlement Date. Revolving Advances made pursuant to the preceding sentences shall bear interest at the interest rate applicable to Revolving Advances consisting of Domestic Rate Loans and shall be deemed to have been properly requested in accordance with Section 2.2(a) without regard to any of the requirements of that provision; provided that , Settlements may occur during the existence of a Default or Event of Default and whether or not the applicable conditions precedent set forth in Section 8.2 have then been satisfied or the revolving credit commitments of the Revolving Lenders hereunder shall have otherwise been terminated at such time. Such amounts transferred to Agent shall be applied against the Swing Loans and shall constitute Revolving Advances of such Revolving Lenders. If any such amount is not transferred to Agent by any Revolving Lender on such Settlement Date, Swing Loan Lender shall be entitled to recover such amount on demand together with interest thereon as specified in Section 2.20(c)(ii).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (UniTek Global Services, Inc.)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers Borrowing Agent, for the benefit of Borrower, as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day of the TermMaturity Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula AmountCredit. All Swing Loans shall be Domestic Rate Loans only. Borrowers Borrower may borrow (at the option and election of Swing Loan Lender), repay and re-borrow reborrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a) hereto). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers Borrower for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers Borrowing Agent, for the benefit of Borrower, as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof 5.2 of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereofbelow. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof2.21) of with respect to the outstanding Swing Loans and the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (Connecture Inc)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Lenders Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing NinthTenth Amendment Effective Date to, but not including, the last day of the TermMaturity Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured fourth amended and restated promissory note (the “by Borrowers in favor of Swing Loan Note”) Lender substantially in the form attached as Exhibit 2.4(a) heretohereto (the “Swing Loan Note”). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Lender holding a Revolving Lender Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Lenders Commitments to fund such participations by means of a Settlement as provided for in Section 2.20(b2.6(d) hereof. From and after the date, if any, on which any Lender holding a Revolving Lender Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Lender holding a Revolving Lender Commitment shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 2.22 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Quantum Corp /De/)
Swing Loans. (a) Subject to In lieu of making Revolving Loans, the Swingline Lender, in its sole discretion, on the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and may make loans (each a "Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”Loan") available to Borrowers as provided for in this Section 2.4 at any time or from time to time after until the Closing Maturity Date to, but not including, the last day of the Term, as provided herein in an aggregate principal amount up not to but not in excess of exceed at any time outstanding the Maximum Swing Loan Advance AmountAvailable Credit. Each Swing Loan shall be made and prepaid upon such notice as the Swingline Lender and Borrowers' Agent shall agree, provided except that the outstanding aggregate principal amount of Swing Loans and may be made automatically (A) pursuant to certain cash management arrangements made from time to time by Borrowers with Administrative Lender and/or (B) for the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of purposes described in item (ic) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amountbelow. All Swing Loans shall be Domestic Prime Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (Note payable to the “order of the Swingline Lender. Borrower shall repay the outstanding principal balance of the Swing Loan Note”) substantially in Loans, together with all accrued and unpaid interest and related fees on the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the futureMaturity Date.
(b) If at any time after US Bank is not the sole Lender the aggregate outstanding balance of the Swing Loans exceeds $4,000,000 for ten consecutive Business Days or at any time upon the request of the Swingline Lender to Administrative Lender that some or all of the Swing Loans be converted to Revolving Loans, then, on the next Business Day, Administrative Lender shall notify each Lender of the principal amount of Swing Loans outstanding as of 9:00 AM (Portland time) on such Business Day (or of the principal amount of the Swing Loans which Swingline Lender desires to be converted) and each Lender's Ratable Portion thereof. Each Lender shall, before 9:00 AM (Portland time) on the next Business Day, make available to Administrative Lender, in immediately available funds, the amount of its Ratable Portion of such principal amount of such Swing Loans. Upon either (i) any request such payment by Borrowing Agent for a Lender, such Lender shall be deemed to have made a Revolving Advance made pursuant Loan as a Prime Rate Loan to Section 2.2(a) hereof or (ii) the occurrence of Borrowers, notwithstanding any deemed request failure by Borrowers for a Revolving Advance pursuant to satisfy the conditions contained in Section 7.2 (without regard to the provisions minimum amount of Section 2.2(a) hereof, Swing Loan Prime Rate Loans). Administrative Lender may elect, in its sole discretion, to have shall use such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a repay the principal amount of Swing Loan; provided that notwithstanding anything Loans to the contrary provided for hereinSwingline Lender. All interest due on the Swing Loans shall be payable to the Swingline Lender. With respect to the Swing Loans, Swing Loan after receipt of payment of principal or interest thereon, Administrative Lender may not make Swing Loan Advances if Swing Loan will promptly distribute the same to the Swingline Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reasonat its Applicable Lending Office.
(c) Upon the making Lenders and Borrowers agree that Swing Loans may be made to allow Administrative Lender to pay each Lender its share of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan)fees, each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in other amounts due hereunder to the extent such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent mayfees, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Creditother amounts are then due and payable.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Administrative Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after on any Business Day during the Closing Date toperiod from the date of this Agreement until the Maturity Date, but not including, make loans ("Swing Loans") under the last day of Swing Note to the Term, Borrower in an aggregate principal amount up not to but not in excess of the Maximum Swing Loan Advance Amount, exceed $10,000,000.00 outstanding at any time; provided that the Outstanding Obligations of all Lenders shall not exceed the combined Commitments at any time. Subject to the other provisions of this Agreement, Borrower may from time to time borrow, prepay (in whole or in part and without premium or penalty), and re-borrow Swing Loans. Except as provided in the following clause (b), each Swing Loan and optional prepayment of a Swing Loan shall be made pursuant to telephone notice to Administrative Agent given no later that 1:00 p.m. (Houston, Texas time) on the date of the proposed Swing Loan or prepayment, promptly confirmed by a completed and executed Notice of Swing Loan Request or Prepayment in the form of the attached Exhibit F telecopied to Administrative Agent. Administrative Agent will make the Swing Loan available to Borrower, and Borrower will make the prepayment available to Administrative Agent, at Borrower's account with Administrative Agent. Each Swing Loan shall be a Base Rate Loan.
(b) Borrower shall repay the outstanding aggregate principal amount of and all accrued and unpaid interest on each Swing Loans and Loan on the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser earlier of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or date 30 days after such Swing Loan is made and (ii) the Formula AmountMaturity Date. All Swing Loans Borrower and the Lenders agree that Administrative Agent may request each Lender to pay, and upon such a request made in accordance with the following sentence each Lender shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election pay, to Administrative Agent such Lender's Pro Rata Share of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make all outstanding Swing Loans as provided in this Section 2.4 during a Base Rate Loan under such Lender's Commitment (A) on each Wednesday, or if such Wednesday is not a Business Day on the period between Settlement Dates. All next Business Day after such Wednesday, on which the aggregate outstanding principal balance of all Swing Loans, after giving effect to all Swing Loans shall to be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever made on such day and the making notices of prepayments of Swing Loans by given for such day, is greater than or equal to $2,000,000.00, (B) on any Business Day on which a Swing Loan has been outstanding for 14 or more days, and (C) upon written request from Administrative Agent. In connection with any Loan to be made as contemplated by the foregoing sentence, Administrative Agent shall give each Lender from time a notice by 1:00 p.m. (Houston, Texas time) on the date the proposed Loan is to time shall not create any duty or obligationbe made, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans a Base Rate Loan in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance amount of its Pro Rata Share of the outstanding Swing Loans. All Loans made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed each request made by Borrowers for a Revolving Advance Administrative Agent pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, foregoing sentence shall be considered to have such request or deemed request treated as a request for a Swing Loanbe Borrowings, and may advance same day funds Borrower hereby irrevocably instructs Administrative Agent to Borrowers as a Swing Loan; provided that notwithstanding anything apply the proceeds of such Loans to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more prepayment of the applicable conditions set forth outstanding Swing Loans. Each Lender (including Administrative Agent) shall make its Pro Rata Share of each such Borrowing available to Administrative Agent in Section 8.2 hereof have not been satisfied or immediately available funds by 3:00 p.m. (Houston, Texas time) on the Revolving Commitments have been terminated for any reason.
(c) Upon the making date requested, irrespective of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless Default.
(c) Upon the acceleration of whether a Settlement has been requested with respect the Maturity Date pursuant to such Swing Loan)this Agreement, each Revolving Lender shall be deemed, without further action by any party hereto, pay to have unconditionally and irrevocably purchased from Swing Loan Administrative Agent such Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount 's Pro Rata Share of all outstanding Letters Swing Loans as a Base Rate Loan under such Lender's Commitment, but in no event shall any Lender be obligated to fund more than its Commitment. Upon the date of Creditsuch payment all accrued but unpaid interest on the Swing Note to such date shall be due and payable by Borrower to Administrative Agent.
(d) The indebtedness of Borrower to Administrative Agent resulting from Swing Loans owing to Administrative Agent shall be evidenced by the Swing Note of Borrower payable to the order of Administrative Agent.
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Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans (“each a "Swing Loans”Loan") otherwise available to Borrowers as provided for in this Section 2.4 at any time or Borrower under the Revolving Credit Facility from time to time after on any Business Day during the period from the Closing Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall at any time not to exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or $15,000,000 and (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender)'s Ratable Portion of the amount by which the Maximum Credit exceeds the Revolving Credit Outstandings at such time; provided, repay and re-borrow (at the option and election of however, that no Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided be made that, after giving effect thereto, would result in this Section 2.4 during the period between Settlement Datesa Borrowing Base Deficiency. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which The Swing Loan Lender shall thereafter be obligated entitled to make rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and (subject to Sections 2.6 and 2.9) shall be repaid within seven days of its making or if sooner upon any Revolving Credit Borrowing. Within the limits set forth in the first sentence of this Section 2.3(a), amounts of Swing Loans in the futurerepaid may be reborrowed under this Section 2.3(a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the relevant Borrower shall telecopy to the contrary provided for herein, Swing Loan Lender may not make a duly completed request setting forth the requested amount and date of the Swing Loan Advances if (a "Swing Loan Request"), to be received by the Swing Loan Lender has been notified by Agent or by Required Lenders not later than 1:00 p.m. (New York City time) on the day of the proposed Borrowing. Subject to the terms of this Agreement, the Swing Loan Lender shall make its Swing Loan available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from any Lender that one or more of the applicable conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender may demand at any time that each Revolving Credit Lender pay to the Swing Loan Lender (for its account), in the manner provided in subsection (d) below, such Revolving Credit Lender's Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) Each demand referred to in clause (c) above to each Revolving Credit Lender shall be accompanied by a statement prepared by the Swing Loan Lender specifying the amount of each Revolving Credit Lender's Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 shall have been satisfied (which conditions precedent the Revolving Credit Lenders for this purpose hereby irrevocably waive), each Revolving Credit Lender shall, before or after 11:00 a.m. (New York City time) on the Business Day next succeeding the date of such Revolving Credit Lender's receipt of such written statement, make available to the Swing Loan Lender, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the applicable Borrower. The Swing Loan Lender shall use such funds to repay the Swing Loans owing to it. To the extent that any Revolving Credit Lender fails to make such payment available to the Swing Loan Lender, the applicable Borrower shall repay such Swing Loan on demand.
(e) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 9.1(g), each Revolving Credit Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Revolving Credit Lender pursuant to clause (d) above, which participation shall be in a principal amount equal to such Revolving Credit Lender's Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Revolving Credit Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (d) above, in proportion immediately available funds, an amount equal to its such Revolving Commitment PercentageCredit Lender's Ratable Portion of such Swing Loan. If such amount is not in fact made available by such Revolving Credit Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover such amount on demand from such Revolving Credit Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(f) hereof. From and after the date, if any, date on which any Revolving Credit Lender is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (d) above with respect to any Swing Loans purchased hereunderLoan or purchases an undivided participation interest in a Swing Loan pursuant to clause (e) above, Agent the Swing Loan Lender shall promptly distribute to such Revolving Credit Lender its such Revolving Commitment Percentage Credit Lender's Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofd) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (e) above.
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Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have the Borrower under the Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date in an aggregate principal amount at any time outstanding (together with the aggregate outstanding principal amount of any other Swing Loan made by the Swing Loan Lender hereunder) not to exceed the Swing Loan Sublimit; provided, however, that (i) the outstanding principal amount of Swing Loans equal to the amount by which the aggregate outstanding principal amount of Swing Loans exceeds $25,000,000 shall be deemed a utilization of the Revolving Credit Commitment of the Swing Loan Lender (unless otherwise agreed in writing by the Swing Loan Lender and prompt notice of such agreement is given to the Administrative Agent) and (ii) at no time shall the Swing Loan Lender make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within fifteen days after its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
(b) In order to request or deemed request treated as a request for a Swing Loan, the Borrower shall fax (or forward by electronic mail or similar means) to the Administrative Agent a duly completed request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth the requested amount and may advance same date of such Swing Loan (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. (New York time) on the day funds to Borrowers as a of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender of the details AMENDED AND RESTATED CREDIT AGREEMENT ▇▇▇▇▇ HEALTHCARE CORPORATION of the requested Swing Loan; provided that notwithstanding anything . Subject to the contrary provided for hereinterms of this Agreement, the Swing Loan Lender may not make a Swing Loan Advances if available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender has been notified by shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or by Required Lenders any Revolving Credit Lender that one or more of the applicable conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 hereof 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender shall notify the Administrative Agent in writing (whether before which writing may be a fax or after electronic mail) weekly, by no later than 10:00 a.m. (New York time) on the occurrence first Business Day of a Default or an Event each week, of Default and regardless the aggregate principal amount of whether a Settlement has been requested with respect to such its Swing Loan), Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving Credit Lender shall be deemedpay to the Administrative Agent, without further action by any party hereto, to have unconditionally and irrevocably purchased from for the account of the Swing Loan Lender, without recourse in the manner provided in clause (e) below, such Revolving Credit Lender’s Ratable Portion of all or warrantya portion of the outstanding Swing Loans, an undivided interest which demand shall be made through the Administrative Agent, shall be in writing and participation shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to in clause (c) above and each demand referred to in clause (d) above to each Revolving Credit Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (New York time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such Swing Loan in proportion notice or demanded to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute be paid pursuant to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent demand, and, notwithstanding whether or not the conditions precedent set forth in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment Sections 3.2 (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
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Swing Loans. (a) Subject to the terms and conditions set forth herein, the Swing Loan Lender, in reliance upon the agreements of the Revolving Credit Lenders set forth in this AgreementSection 2.3, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoevermake loans in Dollars under the Revolving Credit Facility (each, make swing loan advances (a “Swing LoansLoan”) available to the Borrowers as provided for in this Section 2.4 at any time or from time to time after on any Business Day during the period from the Closing Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of at any time outstanding (together with the Maximum Swing Loan Advance Amount, provided that the aggregate outstanding aggregate principal amount of any other Swing Loans Loan made by the Swing Loan Lender hereunder in its capacity as the Swing Loan Lender) not to exceed the Swing Loan Sublimit; provided, however, that (x) at no time shall the Swing Loan Lender make any Swing Loan to the extent that, after giving effect to such Swing Loan, any of the applicable Credit Extension Conditions shall not be satisfied (for the Class of Revolving Credit Commitments with the Latest Maturity Date held by the Swing Loan Lender); provided further that in the event that the Swing Loan Lender and the Revolving Advances at any one time outstanding Administrative Agent are not the same Person, then the Swing Loan Lender shall only make a Swing Loan after having given prior notice thereof to the Administrative Agent; provided further that the Swing Loan Lender shall not exceed be required to make any Swing Loan to the extent that such Swing Loan Lender reasonably believes that any Lender is a Defaulting Lender unless, after giving effect to the requested Swing Loan, there would exist no Fronting Exposure (in the good faith determination of the Swing Loan Lender and the Administrative Agent). Immediately upon the making of a Swing Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Loan Lender a risk participation in such Swing Loan in an amount equal to the lesser product of such Revolving Credit Lender’s Revolving Commitment Percentage (idetermined without regard to any separate Class or Classes of Revolving Credit Commitments of any Lender) times the Maximum Revolving Advance Amount less the Maximum Undrawn Amount amount of all outstanding Letters of Credit or (ii) the Formula Amountsuch Swing Loan. All Each Swing Loans Loan shall be Domestic a Base Rate Loans only. Borrowers may borrow Loan (at or a Canadian Base Rate Loan if made to a Canadian Borrower) denominated in Dollars and must be repaid in full upon any Borrowing hereunder and shall in any event mature no later than the option and election Revolving Credit Termination Date (for the Class of Revolving Credit Commitments with the Latest Maturity Date held by the Swing Loan Lender), repay and re-borrow (at . Within the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially limits set forth in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under first sentence of this Agreement is cancelable at any time for any reason whatsoever and the making clause (a), amounts of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter repaid may be obligated to make Swing Loans in the futurereborrowed under this clause (a).
(b) Upon either Each Borrowing of Swing Loans shall be made upon a Lead Borrower’s irrevocable notice to the Swing Loan Lender and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Loan Request (including by e-mail or facsimile); provided that any telephonic notice must be confirmed promptly by delivery to the Swing Loan Lender and the Administrative Agent of a Swing Loan Request not later than 1:00 p.m. on the requested borrowing date and shall specify (i) any request by Borrowing Agent for a Revolving Advance made pursuant the amount to Section 2.2(a) hereof or be borrowed, (ii) the occurrence Borrower, on account of any deemed request whom, such Borrowing is being requested and (iii) the date of such proposed Borrowing, which shall be a Business Day. Promptly after receipt by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may electof any Swing Loan Request, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Loan Advances Request and, if not, the Swing Loan Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Loan Lender has been notified received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to 3:00 p.m. on the date of the proposed Borrowing of Swing Loans (A) directing the Swing Loan Lender not to make such Swing Loan as a result of the failure of the applicable Credit Extension Conditions to be satisfied, or by Required Lenders (B) that one or more of the applicable conditions set forth specified in Section 8.2 hereof have 4.2 is not been satisfied then satisfied, in each case, other than as a result of a Protective Advance, then, subject to the terms and conditions this Agreement, the Swing Loan Lender may, on the date of such proposed Borrowing specified in such Swing Loan Request, make the amount of its Swing Loan available to the applicable Borrower as promptly as reasonably practicable either by (Ai) crediting the account of such Borrower on the books of the Swing Loan Lender with the amount of such funds or (Bii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Revolving Commitments have been terminated for any reasonSwing Loan Lender by a Lead Borrower.
(c) Upon The Swing Loan Lender may demand at any time (and shall demand, not less frequently than weekly unless such Swing Loan is repaid in accordance with Section 2.3(a) hereof), that each Revolving Credit Lender pay to the making Administrative Agent, for the account of the Swing Loan Lender, in the manner provided in clause (d) below, such Revolving Credit Lender’s Ratable Portion (determined without regard to any separate Class or Classes of Revolving Credit Commitment of any Lender) of all or a portion of the outstanding Swing Loans, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) The Administrative Agent shall forward each demand referred to in clause (c) above to each Revolving Credit Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. on any Business Day or any such notice or demand received on a day that is not a Business Day shall not be required to be forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each Revolving Credit Lender’s Revolving Commitment Percentage of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand. Any such request shall be deemed to be a request, on behalf of the Borrowers (each of whom hereby irrevocably authorize the Swing Loan Lender to so request on its behalf), that each Revolving Credit Lender make Revolving Loan that is a Base Rate Loan in an amount equal to such Revolving Credit Lender’s Revolving Credit Percentage (determined without regard to any separate Class or Classes of Revolving Credit Commitments of any Lender) of the amount of Swing Loans then outstanding for the account of such Borrower. Such request shall be made in writing (which written request shall be deemed to be a Notice of Borrowing for purposes hereof) and in accordance with the requirements of Section 2.1(a), without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Credit Facility and the conditions set forth in Section 4.2 (other than delivery of a Notice of Borrowing). Each Revolving Credit Lender shall, before 11:00 a.m. on the Business Day next succeeding the date of such Revolving Credit Lender’s receipt of such notice or demand, make available to the Administrative Agent, in Dollars and in Same Day Funds in Dollars, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Revolving Credit Lender, such Revolving Credit Lender shall, except as provided in clause (whether before e) below, be deemed to have made a Revolving Loan to the Borrowers in the amount of such payment. The Administrative Agent shall use such funds to repay the Swing Loans to the Swing Loan Lender.
(e) If for any reason any Swing Loan cannot be refinanced by such a Borrowing in accordance with Section 2.3(d) above, the request for Base Rate Loans (or after Canadian Base Rate Loans if made to a Canadian Borrower) submitted by the occurrence Swing Loan Lender as set forth herein shall be deemed to be a request by the Swing Loan Lender that each of the Revolving Credit Lenders fund its risk participation in the relevant Swing Loan and each Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swing Loan Lender pursuant to Section 2.3(d) shall be deemed payment in respect of such participation. If all or part of such amount is not in fact made available by such Revolving Credit Lender to the Swing Loan Lender on such date, the Swing Loan Lender shall be entitled to recover any such unpaid amount on demand from such Revolving Credit Lender together with interest accrued thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Loan Lender a Default rate per annum equal to the applicable Overnight Rate from time to time, plus any administrative, processing or an Event similar fees customarily charged by the Swing Loan Lender in connection with the foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Borrowing or funded participation in the relevant Swing Loan, as the case may be. A certificate of Default and regardless of whether a Settlement has been requested the Swing Loan Lender submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (e) shall be conclusive absent manifest error.
(f) Each Revolving Credit Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swing Loans pursuant to this Section 2.3 shall be absolute and unconditional and shall not be affected by any circumstance, including (Ai) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Loan Lender, any Borrower or any other Person for any reason whatsoever, (Bii) the occurrence or continuance of a Default, (Ciii) the Class of any such Loans or (Div) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Revolving Loans pursuant to Section 2.4(d) is subject to the conditions set forth in Section 4.2 (other than delivery of a Notice of Borrowing). No such funding of risk participations shall relieve or otherwise impair the obligation of any Borrower to repay Swing Loans made for such Borrower’s account, together with interest as provided herein.
(i) At any time after any Revolving Credit Lender has purchased and funded a risk participation in a Swing Loan, if the Swing Loan Lender receives any payment on account of such Swing Loan, the Swing Loan Lender will distribute to such Revolving Credit Lender its Revolving Credit Percentage (determined without regard to any separate Class or Classes of Revolving Credit Commitments of any Lender) thereof in the same funds as those received by the Swing Loan Lender.
(h) If any payment received by the Swing Loan Lender in respect of principal or interest on any Swing Loan is required to be returned by the Swing Loan Lender under any of the circumstances described in Section 12.14 (including pursuant to any settlement entered into by the Swing Loan Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Loan Lender its Revolving Credit Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swing Loan Lender. The obligations of the Revolving Credit Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(i) The Swing Loan Lender shall be deemed, without further action by any party hereto, responsible for invoicing the applicable Borrower for interest on the Swing Loans. Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to have unconditionally and irrevocably purchased from Swing Loan this Section 2.3 to refinance such Revolving Credit Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its ’s Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means Credit Percentage of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunderLoan, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Credit Percentage of such Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into solely for the account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount Swing Loan Lender.
(j) The applicable Borrower shall make all payments with respect to Swing Loans directly to the Administrative Agent for the benefit of all outstanding Letters of Creditthe Swing Loan Lender.
Appears in 1 contract
Swing Loans. (a) Subject to the terms and conditions hereof and relying upon the representations and warranties herein set forth in this Agreementforth, and in order to minimize the transfer of funds facilitate advances and repayments between Lenders and Agent for administrative convenienceSettlement Dates, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender PNC may, at its election and option made in its sole discretion option, cancelable at any time for any reason whatsoever, make swing loan advances loans (“the "Swing Loans”") available (which shall be Domestic Rate Loans only) to Borrowers as provided for in this Section 2.4 at any time or from time to time after the Closing Date date hereof to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of Eight Million Five Hundred Thousand and 00/100 Dollars ($8,500,000.00) (the Maximum "Swing Loan Advance AmountCommitment"), provided that the outstanding aggregate principal amount of PNC's Swing Loans and the Revolving Advances at any one time outstanding of all the Lenders shall not exceed an amount equal to the lesser of (ix) the Maximum Revolving Advance Amount less the aggregate Maximum Undrawn Amount of all outstanding Letters of Credit or (iiy) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Within such limits of time and amount and subject to the other provisions of this Agreement, Borrowers may borrow (at the option and election of Swing Loan Lender)borrow, repay and re-borrow pursuant to this Section 2.23.
(at b) Except as otherwise provided herein, Borrowers may from time to time prior to the option and election last day of Swing Loan Lender) Swing Loans and Swing Loan Lender may the Term request PNC to make Swing Loans by delivery to PNC not later than 1:00 p.m., on the proposed borrowing date of a duly completed request therefor in writing or a request by telephone immediately confirmed in writing by letter, facsimile or telex (each, a "Swing Loan Request"), it being understood that Agent may rely on the authority of any individual making such a telephonic request without the necessity of receipt of such written confirmation. Each Swing Loan Request shall be irrevocable and shall specify the proposed borrowing date and the principal amount of such Swing Loan.
(c) So long as provided PNC elects to make Swing Loans, PNC shall, after receipt by it of a Swing Loan Request pursuant to Section 2.22(b) hereof, fund such Swing Loan to Borrowers in this Section 2.4 during Dollars and immediately available funds at the period between Settlement Dates. All Payment Office or other place that PNC may designate from time to time prior to 2:00 p.m., on the borrowing date.
(d) The obligation of Borrowers to repay the aggregate unpaid principal amount of the Swing Loans made to Borrowers by PNC, together with interest thereon, shall be evidenced by a secured promissory note (the “Swing Loan Note”) Note in substantially in the form attached hereto as Exhibit 2.4(a) hereto. 2.23(d), dated the Closing Date payable to the order of PNC in a face amount equal to the Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable Commitment.
(e) PNC may, at its option, exercisable at any time for any reason whatsoever and but not less frequently than on each Settlement Date, request repayment of the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligationthe Lenders, or establish any course of conduct, pursuant to which Swing Loan and each Lender shall thereafter be obligated to make Swing Loans in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant in an amount equal to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a such Lender's Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments the aggregate principal amount of principal and the outstanding Swing Loans, plus, if PNC so requests, accrued interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; thereon, provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its commitment to make Advances. Revolving Commitment Amount minus its Participation Commitment (taking into account Advances made pursuant to the preceding sentence shall bear interest at the Revolving Interest Rate for Domestic Rate Loans and shall be deemed to have been properly requested in accordance with Section 2.2 hereof without regard to any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount requirements of all outstanding Letters that provision. PNC shall provide notice to the Lenders (which may be telephonic or written notice by letter, facsimile or telex) that such Revolving Advances are to be made under this Section 2.23(e) and of Creditthe apportionment among the Lenders, and the Lenders shall be unconditionally obligated to fund such Revolving Advances (whether or not (i) the conditions specified in Section 8.2 hereof are then satisfied or (ii) a Default or an Event of Default has occurred and is continuing unless, prior to the time such Swing Loans were made, the Required Lenders shall have directed Agent not to make Advances to Borrowers) by the time PNC so requests, which shall not be earlier than 3:00 p.m. on the next Business Day after the date the Lenders receive such notice from PNC.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (General Finance CORP)
Swing Loans. (a) Subject to the terms and conditions set forth in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, during the Commitment Period Agent shall make a Swing Loan Lender may, at its election and option made or Swing Loans to Nordson in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (“Swing Loans”) available to Borrowers such amount or amounts as provided for in this Section 2.4 at any time or Nordson may from time to time request; provided however, that Nordson shall not request any Swing Loan hereunder if, after giving effect thereto, (a) the Revolving Exposure would exceed the Total Commitment Amount, or (b) the Swing Line Exposure would exceed the Swing Line Commitment. Each Swing Loan shall be due and payable on the Swing Loan Maturity Date applicable thereto. Nordson shall not request that more than two (2) Swing Loans be outstanding at any time. Each Swing Loan shall be made in Dollars. Nordson shall pay interest, for the sole benefit of Agent (and any Bank that has purchased a participation in such Swing Loan), on the unpaid principal amount of each Swing Loan outstanding from time to time from the date thereof until paid at the Derived Swing Loan Rate applicable to such Swing Loan. Interest on each Swing Loan shall be payable on the Swing Loan Maturity Date applicable thereto. Each Swing Loan shall bear interest for a minimum of one (1) day. The obligation of Nordson to repay the Swing Loans and to pay interest thereon shall be evidenced by a Swing Line Note of Nordson substantially in the form of Exhibit B hereto, dated the Closing Date toDate, but not includingand payable to the order of Agent in the principal amount of the Swing Line Commitment, or, if less, the last day of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate unpaid principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal made hereunder by Agent. Subject to the lesser provisions of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans this Agreement, Nordson shall be Domestic Rate Loans only. Borrowers may entitled under this Section 2.01B to borrow (at the option and election of Swing Loan Lender)funds, repay the same in whole or in part and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable hereunder at any time for any reason whatsoever and the making of Swing Loans by Swing Loan Lender from time to time during the Commitment Period. If Agent so elects, by giving notice to Nordson and the Banks, Nordson agrees that Agent shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in have the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may electright, in its sole discretion, to have such request or deemed request treated require that any Swing Loan be refinanced as a request Revolving Loan. Such Revolving Loan shall be a Base Rate Loan unless and until converted by a Borrower to a Eurodollar Loan pursuant to Section 2.01A and Section 2.02 hereof. Upon receipt of such notice by Nordson, Nordson shall be deemed, on such day, to have requested a Revolving Loan in the principal amount of the Swing Loan in accordance with Section 2.01A and Section 2.02 hereof. Each Bank agrees to make a Revolving Loan on the date of such notice, subject to no conditions precedent whatsoever. Each Bank acknowledges and agrees that such Bank’s obligation to make a Revolving Loan pursuant to Section 2.01A when required by this Section 2.01B is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, the occurrence and continuance of a Default or Event of Default, and that its payment to Agent, for a the account of Agent, of the proceeds of such Revolving Loan shall be made without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether or not such Bank’s Revolving Commitment shall have been reduced or terminated. Nordson irrevocably authorizes and instructs Agent to apply the proceeds of any borrowing pursuant to this paragraph to repay in full such Swing Loan. If, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon , Agent is unable to or, in the making opinion of Agent, it is impracticable to, convert any Swing Loan to a Revolving Loan pursuant to the preceding paragraph, then on any day that a Swing Loan is outstanding (whether before or after the maturity thereof), Agent shall have the right to request that each Bank purchase a participation in such Swing Loan, and Agent shall promptly notify each Bank thereof (by facsimile or telephone, confirmed in writing). Upon such notice, but without further action, Agent hereby agrees to grant to each Bank, and each Bank hereby agrees to acquire from Agent, an undivided participation interest in such Swing Loan in an amount equal to such Bank’s Commitment Percentage of the aggregate principal amount of such Swing Loan. In consideration and in furtherance of the foregoing, each Bank hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to Agent, for its sole account, such Bank’s ratable share of such Swing Loan (determined in accordance with such Bank’s Commitment Percentage). Each Bank acknowledges and agrees that its obligation to acquire participations in Swing Loans pursuant to this Section 2.01B is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, the occurrence and continuance of a Default or an Event of Default Default, and regardless that each such payment shall be made without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether or not such Bank’s Revolving Commitment shall have been reduced or terminated. Each Bank shall comply with its obligation under this Section 2.01B by wire transfer of whether a Settlement has been requested immediately available funds, in the same manner as provided in Section 2.02 hereof with respect to Revolving Loans to be made by such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of CreditBank.
Appears in 1 contract
Sources: Credit Agreement (Nordson Corp)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoevermake loans (each, make swing loan advances (a “Swing LoansLoan”) otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Revolving Credit Facility from time to time after on any Business Day during the Closing period from the Effective Date to, but not including, until the last day of the Term, Revolving Credit Termination Date in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding shall at any time not to exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or $5,000,000 and (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at the option and election of Swing Loan Lender) Swing Loans and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Ratable Portion of the amount by which the Maximum Credit exceeds the Revolving Credit Outstandings at such time; provided, however, that no Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and the making of Swing Loans by Loan may be made that, after giving effect thereto, would result in a Borrowing Base Deficiency. The Swing Loan Lender shall be entitled to rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and (subject to Sections 2.6 and 2.9) shall be repaid upon any Borrowing of a Revolving Loan or from time to time shall not create any duty or obligation, or establish any course at the discretion of conduct, pursuant to which the Swing Loan Lender shall thereafter be obligated to make but in any event no later than the Scheduled Termination Date. Within the limits set forth in the first sentence of this Section 2.3(a), amounts of Swing Loans in the futurerepaid may be reborrowed under this Section 2.3(a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy to the contrary provided for herein, Swing Loan Lender may not make a duly completed request setting forth the requested amount and date of the Swing Loan Advances if (a “Swing Loan Request”), to be received by the Swing Loan Lender has been notified by Agent or by Required Lenders not later than 1:00 p.m. (New York City time) on the day of the proposed Borrowing. Subject to the terms of this Agreement, the Swing Loan Lender shall make its Swing Loan available to the Borrower on the date of the relevant Swing Loan Request. The Swing Loan Lender shall not make any Swing Loan in the period commencing on the first Business Day after it receives written notice from any Lender that one or more of the applicable conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The Swing Loan Lender shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 8.2 3.2 hereof have not been satisfied or in connection with the Revolving Commitments have been terminated for making of any reasonSwing Loan.
(c) Upon the making of a The Swing Loan Lender may demand at any time that each Lender pay to the Swing Loan Lender (for its account), in the manner provided in subsection (d) below, such Lender’s Ratable Portion of all or a portion of the outstanding Swing Loans, which demand shall be in writing and shall specify the outstanding principal amount of Swing Loans demanded to be paid.
(d) Each demand referred to in clause (c) above to each Lender shall be accompanied by a statement prepared by the Swing Loan Lender specifying the amount of each Lender’s Ratable Portion of the aggregate principal amount of the Swing Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Section 3.2 shall have been satisfied (which conditions precedent the Lenders for this purpose hereby irrevocably waive), each Lender shall, before or after 11:00 a.m. (New York City time) on the Business Day next succeeding the date of such Lender’s receipt of such written statement, make available to the Swing Loan Lender, in immediately available funds, for the account of the Swing Loan Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (f) below, be deemed to have made a Revolving Loan to the Borrower. The Swing Loan Lender shall use such funds to repay the Swing Loans owing to it. To the extent that any Lender fails to make such payment available to the Swing Loan Lender, the Borrower shall repay such Swing Loan on demand.
(e) Upon the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loanunder Section 9.1(g), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lenderacquire, without recourse or warranty, an undivided interest and participation in each Swing Loan otherwise required to be repaid by such Lender pursuant to clause (d) above, which participation shall be in a principal amount equal to such Lender’s Ratable Portion of such Swing Loan, by paying to the Swing Loan Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Loan pursuant to clause (d) above, in proportion immediately available funds, an amount equal to its Revolving Commitment Percentagesuch Lender’s Ratable Portion of such Swing Loan. If such amount is not in fact made available by such Lender to the Swing Loan Lender or Agent mayon such date, the Swing Loan Lender shall be entitled to recover such amount on demand from such Lender together with interest accrued from such date at any time, require the Revolving Lenders Federal Funds Rate for the first Business Day after such payment was due and thereafter at the rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.20(bBase Rate Loans.
(f) hereof. From and after the date, if any, date on which any Revolving Lender is required deemed to fund, and funds, its participation in have made a Revolving Loan pursuant to clause (d) above with respect to any Swing Loans purchased hereunderLoan or purchases an undivided participation interest in a Swing Loan pursuant to clause (e) above, Agent the Swing Loan Lender shall promptly distribute to such Lender its Revolving Commitment Percentage such Lender’s Ratable Portion of all payments of principal of and interest and all proceeds of Collateral received by Agent in respect the Swing Loan Lender on account of such Swing Loan; provided that no Revolving Loan other than those received from a Lender shall be obligated in any event pursuant to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment clause (taking into account any reallocations under Section 2.23 hereofd) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (e) above.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Revolving Lenders and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans (“Swing Loans”each a "SWING LOAN") otherwise available to Borrowers as provided for in this Section 2.4 at any time or the Borrower under the Facility from time to time after on any Business Day during the Closing period from the date hereof until the Revolving Credit Termination Date to, but not including, the last day of the Term, in an aggregate principal amount up to but not in excess of at any time outstanding (together with the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans and any other loans made by the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and re-borrow (at Lender hereunder in its capacity as a Lender or the option and election of Swing Loan Lender) Swing Loans at any time not to exceed the lesser of $20,000,000 and Swing Loan Lender may make Swing Loans as provided in this Section 2.4 during the period between Settlement Dates. All Swing Loans shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached as Exhibit 2.4(a) hereto. Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable 's Ratable Portion of the Available Credit at any time for any reason whatsoever and such time; PROVIDED, HOWEVER, that the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter not make any Swing Loan to the extent that, after giving effect to such Swing Loan, the aggregate Revolving Credit Outstandings would exceed the Maximum Credit. The Swing Loan Lender shall be obligated entitled to make rely on the most recent Borrowing Base Certificate delivered to the Administrative Agent. Each Swing Loan shall be a Base Rate Loan and must be repaid in full within seven days of its making or, if sooner, upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this Section 2.3(a) amounts of Swing Loans in the futurerepaid may be reborrowed under this Section 2.3(a).
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) hereof or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a) hereof, Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same day funds to Borrowers as a Swing Loan; provided that notwithstanding anything the Borrower shall telecopy to the contrary provided for hereinAdministrative Agent a duly completed request setting forth the date, the requested amount and date of the Swing Loan (a "SWING LOAN REQUEST"), to be received by the Administrative Agent not later than 12:00 p.m. (New York City time) on the day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender may not make Swing Loan Advances if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Revolving Lenders to fund such participations by means of a Settlement as provided for in Section 2.20(b) hereof. From and after the date, if any, on which any Revolving Lender is required to fund, and funds, its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Swing Loan; provided that no Revolving Lender shall be obligated in any event to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.23 hereof) details of the Maximum Undrawn Amount of all outstanding Letters of Credit.requested Swing
Appears in 1 contract