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 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 date hereof to, but not including, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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 date hereof to, but not including, the 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 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) (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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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, Revolving Lenders holding Revolving 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 date hereof Closing Date to, but not including, the expiration 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 reborrow 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 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 Loans 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 of this Agreement 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 holding a Revolving 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 Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d2.20(b) belowhereof. From and after the date, if any, on which any Revolving Lender holding a Revolving 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 Revolving 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 2.222.23 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 5 contracts
Sources: Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO 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, the Lenders holding Revolving 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 date hereof Closing Date to, but not including, the expiration 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 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(a2.14(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 Loans 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below2.10(d). From and after the date, if any, on which any Lender holding a Revolving 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 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 2.222.13) 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. (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 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 date hereof to, but not including, the 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 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). 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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, Lenders holding Revolving 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 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 date hereof to, but not including, period from the expiration of Closing Date until 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dPrime Rate Loans.
(g) below. From and after the date, if any, date on which any Lender holding (i) is deemed to have made a Revolving Commitment 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 Loan other than those received from a Lender holding a Revolving Commitment 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 2.22e) 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, Lenders holding Revolving 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 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 date hereof to, but not including, period from the expiration of Closing Date until 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Lender holding (i) is deemed to have made a Revolving Commitment 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 Loan other than those received from a Lender holding a Revolving Commitment 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 2.22e) 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. (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, Lenders holding Revolving Commitments 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 date hereof to, but not including, the 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 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 reborrow (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 hereto as Exhibit 2.4(a). 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) 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(a), Swing Loan Lender may elect, 2.09(d)(iv)(B) 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 Loans 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 of this Agreement 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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 Commitments 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 hereof tothereof 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, but not includingdated the Closing Date, and payable to the order of Agent in the principal amount of the Swing Line Commitment, or, if less, the 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 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 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). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable re-borrow 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) 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)preceding 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 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 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 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 Lender holding a Revolving 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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, Lenders holding Revolving Commitments 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 date hereof to, but aggregate of such advance and amount of Swing Loans theretofore advanced and still outstanding does not including, at any time exceed the expiration 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 reborrow (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 hereto as Exhibit 2.4(a). 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) 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), 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 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 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 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 Commitment 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 2.22) 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 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 date hereof to, but not including, the 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 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). 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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, Lenders holding Revolving Commitments 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 date hereof to, but not including, period from the expiration of Restatement Effective Date until 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 reborrow (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 hereto as Exhibit 2.4(aproviso to Section 12.1(b) hereof). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(f) below. From and after the date, if any, date on which any Revolving Credit Lender holding (i) is deemed to have made a Revolving Commitment 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 Loan other than those received from a Lender holding a Revolving Commitment 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 2.22d) 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, the Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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 Loans 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d2.20(c) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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, Lenders holding Revolving Commitments 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 date hereof to, but Borrower shall not including, the expiration 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 reborrow 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 hereto as Exhibit 2.4(a). 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) 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), 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 Loans 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 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 Agreement have 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 Lender holding Bank purchase a Revolving 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment 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 Lender holding 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 Revolving 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 be obligated in any event to make Revolving Advances in an amount in excess of 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 2.22) 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 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, Lenders holding Revolving Commitments 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 date hereof to, but not including, period from the expiration of Effective Date until 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 reborrow (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 hereto as Exhibit 2.4(a). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(f) below. From and after the date, if any, date on which any Lender holding (i) is deemed to have made a Revolving Commitment 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 Loan other than those received from a Lender holding a Revolving Commitment 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 2.22d) 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 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 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 date hereof to, but not including, the 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 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). 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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, Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans if Loan 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 3.2 (Conditions Precedent to Each Loan and Letter of this Agreement 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 holding a Revolving Commitment 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 Lenders holding Revolving Commitments rate of interest then applicable to fund such participations by means of a Settlement as provided for in Section 2.6(dBase Rate Loans.
(f) below. From and after the date, if any, date on which any Revolving Credit Lender holding (i) is deemed to have made a Revolving Commitment 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 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 Lender holding Loan other than those received from a Revolving Commitment 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 2.22) 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 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 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 date hereof SixteenthNineteenth Amendment Effective Date to, but not including, the expiration 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 reborrow 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 by Borrowers in favor of Swing Loan Lender substantially in the form attached as Exhibit 2.4(a) hereto (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(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 (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 Loans 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 of this Agreement 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.222.22 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, Lenders holding Revolving Commitments 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 date hereof to, but not including, period from the expiration of Closing Date until 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 reborrow (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 hereto as Exhibit 2.4(afirst sentence of this clause (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 , 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dABR Loans.
(f) below. From and after the date, if any, date on which any Lender holding (i) is deemed to have made a Revolving Commitment 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 Lender holding a to the extent that the amount of such reallocation would cause the Revolving Commitment 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 2.22) 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. (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 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 date hereof to, but not including, the 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 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)2.4. 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d2.5(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.222.21) 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 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, Lenders holding Revolving Commitments 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 date hereof to, but aggregate of such advance and amount of Swing Loans theretofore advanced and still outstanding does not including, at any time exceed the expiration 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 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 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 hereto as Exhibit 2.4(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 (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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. 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 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 date hereof to, but not including, the 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 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)and 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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, Lenders holding Revolving Commitments 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 date hereof to, but not including, period from the expiration of Effective Date until 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 reborrow (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 hereto as Exhibit 2.4(aproviso to Section 12.1(b) hereof). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(f) below. From and after the date, if any, date on which any Lender holding (i) is deemed to have made a Revolving Commitment 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 Loan other than those received from a Lender holding a Revolving Commitment 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 2.22d) 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 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, Lenders holding Revolving Commitments 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 date hereof to, but Borrower shall not including, the expiration 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 reborrow 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 hereto as Exhibit 2.4(a). 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) 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), 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 Loans 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 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 Agreement have 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 Lender holding Bank purchase a Revolving 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment 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 Lender holding 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 Revolving 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 obligated 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 any event conformity herewith. The Swing Line Note issued to make Revolving Advances in an amount in excess each Swing Line Lender shall (i) be executed by the Borrower, (ii) be payable to the order of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.22) 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, the Lenders holding Revolving 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 date hereof to, but not including, the expiration 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 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(a2.14(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 Loans 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below2.10(d). From and after the date, if any, on which any Lender holding a Revolving 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 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 2.222.13) 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 the Swingline Lender shall make loans in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving 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 Dollars (each a “Swing LoansLoan”) available to the Parent on behalf the Borrowers as provided for in this Section 2.4 at any time or under the Term B Loan Commitment from time to time after on any Business Day during the period from the date hereof to, but not including, until the expiration earlier of (i) the third anniversary of the Term, Initial Closing Date and (ii) the 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 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). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever and outstanding not to exceed the making of Swing Loans by Swing Loan Lender from time to time shall not create any duty or obligationSwingline Commitment; provided, or establish any course of conducthowever, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in that the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Swingline Lender may not make Swing Loans if any Swing Loan Lender has been notified by (x) to the extent that after giving effect to such Swing Loan, the aggregate amount of outstanding Term B Loans would exceed the Term B Loan Commitment and (y) in the period commencing on the first Business Day after it receives notice from the Administrative Agent or by Required a majority of the Swingline Lenders that one or more of the applicable conditions precedent contained in Section 12.4 are not satisfied and ending when such conditions are satisfied or duly waived by the Administrative Agent or a majority of the Swingline Lenders. In connection with the making of any Swing Loan, the Swingline Lender may, but shall not be required to, determine that, or take notice whether, the conditions precedent set forth in Section 8.2 of this Agreement 12.4 have not been satisfied or waived. Each Swing Loan shall be a Base Rate Loan and must be repaid in full on the Revolving Commitments have been terminated for earliest of (i) the Termination Date and (ii) 60 days from the date of such Swing Loan. Within the limits set forth in the first sentence of this Section 2.1.3, amounts of Swing Loans repaid may be reborrowed under this Section 2.1.3. In order to request a Swing Loan, the Parent on behalf of the Borrowers shall give to the Administrative Agent a notice to be received not later than 11:00 A.M. on the day of the proposed borrowing, which may be made in a writing substantially in the form of Exhibit F duly completed (a “Swingline Request”) or by telephone if confirmed promptly but, in any reason.
(c) event, prior to such borrowing, with such a Swingline Request. The Administrative Agent shall promptly notify the Swingline Lender of the details of the requested Swing Loan. Upon receipt of such notice and subject to the making terms of this Agreement, the Swingline Lender shall make a Swing Loan available to the Borrower by making the proceeds thereof available to the Administrative Agent and, in turn, the Administrative Agent shall make such proceeds available to the Parent on behalf of the Borrowers on the date set forth in the relevant Swingline Request. The Administrative Agent shall act as the sole Swingline Lender, unless it elects in its sole and absolute discretion to require, upon oral or written notice, that the Lenders holding the Term B Loan Commitment fund the Swing Loan in an amount equal to each Lender’s Pro Rata Share. The Swingline Lender may at any time forward a demand to the Administrative Agent (whether before which the Administrative Agent shall, upon receipt, forward to each Lender) that each Lender pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Pro Rata Share of all or after a portion of the outstanding Swing Loans. Each Lender shall pay such Pro Rata Share to the Administrative Agent for the account of the Swingline Lender within one Business Day of receipt of such request. Upon the occurrence of a Default or an any Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan)Default, each Lender holding a Revolving Commitment shall be deemed, without further action by any party hereto, deemed to have unconditionally and irrevocably purchased from Swing Loan Lenderacquired, without recourse or warranty, an undivided interest and participation in such each Swing Loan in proportion an amount equal to its Revolving Commitment Percentagesuch Lender’s Pro Rata Share of such Swing Loan. Upon receipt by the Swingline Lender of any payment from any Lender pursuant to the foregoing with respect to any portion of any Swing Loan, the Swingline Lender shall promptly pay over to such Lender all payments of principal (to the extent received after such payment by such Lender) and interest (to the extent accrued with respect to periods after such payment) received by the Swingline Lender with respect to such portion. Each Lender’s obligations pursuant hereto shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, including (A) the existence of any setoff, claim, abatement, recoupment, defense or other right that such Lender, any Affiliate thereof or any other Person may have against the Swing Loan Lender or Agent mayany other Person, at (B) the failure of any time, require condition precedent set forth in Section 12.4 to be satisfied or the failure of the Borrower to deliver any notice set forth in Section 2.2.2 (each of which requirements the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for hereby irrevocably waive) and (C) any adverse change in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 condition (taking into account any reallocations under Section 2.22financial or otherwise) of the Maximum Undrawn Amount of all outstanding Letters of Creditany Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Aviv REIT, Inc.), Credit Agreement (Aviv REIT, 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 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 date hereof to, but not including, the 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 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). 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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, Lenders holding Revolving Commitments 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 period from the date hereof to, but not including, until the expiration 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 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 Lender holding a Revolving 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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 date hereof to, but not including, the 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 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). 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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 date hereof to, but not including, the 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 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). 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 Loans 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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 date hereof to, but not including, the 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 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). 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 Loans 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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, Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans if Loan 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 3.2 (Conditions Precedent to Each Loan and Letter of this Agreement 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 Lender may demand at any time that each Revolving Credit Lender pay to the occurrence Administrative Agent, for the account 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 Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from 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 holding by the Administrative Agent until the next succeeding Business Day), together with a notice specifying the amount of each Revolving Commitments 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 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 3.2 (taking into account any reallocations under Section 2.22) 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 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 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 date hereof to, but not including, the 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 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). 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 Revolving Lenders and Administrative Agent for administrative convenience, Administrative Agent, Revolving Lenders holding Revolving 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 date hereof to, but not including, the 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 reborrow 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). 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 Loans 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 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 Revolving 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 Administrative Agent may, at any time, require the Revolving Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Revolving Lender holding a Revolving 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 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 holding a Revolving 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 2.22) 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 Revolving Lenders and Agent for administrative convenience, Agent, Revolving Lenders holding Revolving 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 date hereof Closing Date to, but not including, the expiration 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 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)2.4. 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 Loans 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 of this Agreement 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 holding a Revolving 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 Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Revolving Lender holding a Revolving Commitment 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 holding a Revolving Commitment 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 2.222.22 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, Lenders holding Revolving 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 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 date hereof to, but not including, period from the expiration of Covenant Reversion Date until 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 reborrow (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 hereto as Exhibit 2.4(a2.3(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 (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Revolving Credit Lender holding is deemed to have made a Revolving Commitment is required Credit Loan pursuant to fund, and funds, its participation in 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 Lender holding Loan other than those received from a Revolving Commitment shall be obligated in any event Credit Lender 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 2.22e) 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 Revolving Lenders and Agent for administrative convenience, Agent, Revolving Lenders holding Revolving 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 date hereof Closing Date to, but not including, the expiration 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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, Lenders holding Revolving 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 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 date hereof to, but not including, period from the expiration of Closing Date until 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 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 reborrow (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 hereto as Exhibit 2.4(afirst sentence of this clause (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 , 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) 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), 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 Loans Loan 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 4.2 is not then satisfied, in each case, other than as a result of a Protective Advance, then, subject to the terms and conditions this Agreement have not been satisfied 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 (i) crediting the account of such Borrower on the books of the Swing Loan Lender with the amount of such funds or (ii) 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 making of a The Swing Loan Lender may demand at any time (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 shall demand, not less frequently than weekly unless such Swing LoanLoan is repaid in accordance with Section 2.3(a) hereof), that each Revolving Credit Lender holding a Revolving Commitment 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 or warranty, an undivided interest and participation in such Swing Loan the manner provided in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(dclause (d) below. From , 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 the date, if any, 2:00 p.m. on which any Lender holding Business Day or any such notice or demand received on a Revolving Commitment day that is not a Business Day shall not be required to fundbe forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), and funds, its participation in any Swing Loans purchased hereunder, together with a statement prepared by the Administrative Agent shall promptly distribute to such Lender its specifying the amount of each Revolving Credit Lender’s Revolving Commitment Percentage of all payments 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 interest 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 all proceeds in Same Day Funds, for the account of Collateral received 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 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 Canadian Base Rate Loans if made to a Canadian Borrower) submitted by the 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 at a rate per annum equal to the applicable Overnight Rate from time to time, plus any administrative, processing or 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; provided that no , as the case may be. A certificate of the Swing Loan Lender holding a submitted to any Revolving Commitment Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (e) shall be obligated in any event conclusive absent manifest error.
(f) Each Revolving Credit Lender’s obligation to make Revolving Advances Loans or to purchase and fund risk participations in an amount Swing Loans pursuant to this Section 2.3 shall be absolute and unconditional and shall not be affected by any circumstance, including (i) 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, (ii) the occurrence or continuance of a Default, (iii) the Class of any such Loans or (iv) 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 excess 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.
(g) 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 Commitment Amount minus its Participation Commitment Credit Percentage (taking into account determined without regard to any reallocations 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 Section 2.22) any of the Maximum Undrawn Amount 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 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 this Section 2.3 to refinance such Revolving Credit Lender’s Revolving Credit Percentage of any Swing Loan, interest in respect of such Revolving Credit Percentage of such Lender shall be solely for the account of the Swing Loan Lender.
(j) The applicable Borrower shall make all outstanding Letters payments with respect to Swing Loans directly to the Administrative Agent for the benefit of Creditthe Swing Loan Lender.
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 Revolving Lenders and the Administrative Agent for administrative convenience, the Administrative Agent, Revolving Lenders holding Revolving 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 Company as provided for in this Section 2.4 2.7 at any time or from time to time after the date hereof Closing Date to, but not including, the expiration 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 AmountCredit. All Swing Loans shall be Domestic Floating Rate Loans only. Borrowers The Company may borrow (at the option and election of Swing Loan Lender), repay and reborrow 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 2.7 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)C 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 Company for a Revolving Advance made pursuant to Section 2.2(a) 2.2.1 hereof or (ii) the occurrence of any deemed request by Borrowers the Company for a Revolving Advance pursuant to the provisions of Section 2.2(a)2.2.1 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 Company as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loans if Swing Loan Lender has been notified by the Administrative Agent or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 of this Agreement 4.2 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 of whether a Settlement has been requested with respect to such Swing Loan), each Revolving Lender holding a Revolving 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 the Administrative Agent may, at any time, require the Revolving Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below2.3.5 hereof. From and after the date, if any, on which any Revolving Lender holding a Revolving Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, the Administrative 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 the Administrative Agent in respect of such Swing Loan; provided that no Revolving Lender holding a Revolving 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 2.222.17 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
(d) The Administrative Agent, on behalf of Swing Loan Lender, shall demand settlement (a “Settlement”) of all or any Swing Loans with Revolving Lenders on at least a weekly basis, or on any more frequent date that the Administrative Agent elects or that Swing Loan Lender at its option exercisable for any reason whatsoever may request, by notifying Revolving Lenders of such requested Settlement by facsimile, telephonic or electronic transmission no later than 3:00 p.m. (New York City time) on the date of such requested Settlement (the “Settlement Date”). Subject to any contrary provisions of Section 2.17 hereof, each Revolving Lender shall transfer the amount of such Revolving Lender’s Revolving Commitment Percentage of the outstanding principal amount (plus interest accrued thereon to the extent requested by the Administrative Agent) of the applicable Swing Loan with respect to which Settlement is requested by the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may designate not later than 5:00 p.m. (New York City time) on such Settlement Date if requested by the Administrative Agent by 3:00 p.m. (New York City time), otherwise not later than 5:00 p.m. (New York City time) on the next Business Day. Settlements may occur at any time notwithstanding that the conditions precedent to making Revolving Advances set forth in Section 4.2 hereof have not been satisfied or the Revolving Commitments shall have otherwise been terminated at such time. All amounts so transferred to the Administrative Agent shall be applied against the amount of outstanding Swing Loans and, when so applied shall constitute Revolving Advances of such Revolving Lenders accruing interest as Floating Rate Loans. If any such amount is not transferred to the Administrative Agent by any Revolving Lender on such Settlement Date, the Administrative Agent shall be entitled to recover such amount on demand from such Revolving Lender together with interest thereon as specified in Section 2.3.4 hereof.
Appears in 1 contract
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, Lenders holding Revolving 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 Wachovia shall from time to time after time, upon the date hereof to, but not including, the expiration 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 exceeding $5,000,000; PROVIDED that, immediately after such Swing Loan is made, the outstanding amount of the Maximum Swing Loan Advance AmountSyndicated Loans, provided that the outstanding aggregate principal amount of Money Market Loans, and Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (iA) the Maximum Revolving Advance Amount less aggregate amount of the Maximum Undrawn Amount of all outstanding Letters of Credit or Commitments and (iiB) the Formula AmountBorrowing Base. Within the foregoing limits, the Borrower may borrow under this Section 2.01(b), prepay and reborrow under this Section 2.01(b) at any time before the Termination Date. All Swing Loans shall be Domestic made as either Base Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender)or, repay and 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant subject to the provisions of Section 2.2(aclause (ii) below, Transaction Rate Loans.
(ii) Swing Loans may be Transaction Rate Loans, if the Agent shall have determined that such Transaction Rate Loan, including the principal amount thereof, the Interest Period and 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 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 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 Agent, with its rate quote (a "Transaction Rate Quote") via facsimile transmission, (c) the Borrower shall immediately inform Wachovia and the 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 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 Agent in accordance with the procedures set forth herein. The Agent shall notify the Banks of any Transaction Rate Borrowing pursuant hereto.
(iii) At any time on or after the occurrence of an Event of Default, 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 Loan Lender may electLoans in an amount equal to its ratable share (based upon its respective Commitment) of such Swing Loans, and Wachovia shall furnish each Bank with a certificate evidencing such participating interest. On such third Domestic Business Day, each Bank will immediately transfer to Wachovia, in immediately available funds, the amount of its sole discretionparticipation. Whenever, to have at any time after Wachovia has received from any such request or deemed request treated as a request for Bank its participating interest in a Swing Loan, the Agent receives any payment on account thereof, the Agent will distribute to such Bank its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Bank's participating interest was outstanding and may advance same day funds funded); PROVIDED, HOWEVER, that in the event that such payment received by the Agent is required to Borrowers as a Swing Loan; provided that notwithstanding anything be returned, such Bank will return to the contrary provided for hereinAgent any portion thereof previously distributed by the Agent to it. Each Bank's obligation to purchase such participating interests shall be absolute and unconditional and shall not be affected by any circumstance, Swing Loan Lender including, without limitation: (1) any set-off, counterclaim, recoupment, defense or other right which such Bank or any other Person may not make Swing Loans if Swing Loan Lender has been notified by Agent have against Wachovia requesting such purchase or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 of this Agreement have not been satisfied or the Revolving Commitments have been terminated any other Person for any reason.
reason whatsoever; (c2) Upon the making of a Swing Loan (whether before or after the occurrence or 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 Lender holding a Revolving Commitment shall be deemed, without further action by the Commitments; (3) 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 Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22otherwise) of the Maximum Undrawn Amount Borrower or Guarantor; (4) any breach of all outstanding Letters this Agreement by the Borrower or any other Bank; or (5) any other circumstance, happening or event whatsoever, whether or not similar to any of Creditthe foregoing.
Appears in 1 contract
Sources: Credit Agreement (Amli Residential Properties Trust)
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 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 date hereof Closing Date to, but not including, the expiration 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 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). 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.. 074658.16087/126128822v.10
(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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.222.9) 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 ----------- herein, the Swing Bank agrees to make Swing Loans to the Borrower, in this Agreementthe Swing Bank's sole discretion, and in order to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving 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 during the date hereof to, but not including, the expiration of the TermCommitment Period, in an aggregate principal amount up to but at any time outstanding that will not result in excess of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of outstanding Swing Loans exceeding $3,000,000.00. Within the foregoing limit and subject to the Swing Bank's discretion and the Revolving Advances at any one time outstanding shall not exceed an amount equal to terms and conditions set forth herein, the lesser of (i) Borrower may borrow, prepay and reborrow the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula AmountSwing Loans. All Each Swing Loans Loan shall be Domestic made as a Prime Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and 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). 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 futureLoan.
(b) Upon either (i) any To request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 the Borrower shall notify the Swing Bank (which shall promptly notify the Administrative Agent) of such request by telephone (confirmed by telecopy), not later than 1:00 p.m., Philadelphia time, on the day funds to Borrowers as of a proposed Swing Loan; provided that notwithstanding anything . Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the requested Swing Loan and the amount of the requested Swing Loan. The Swing Bank shall make each Swing Loan available to the contrary provided for hereinBorrower, Swing Loan Lender may not make Swing Loans if Swing Loan Lender has been notified in its discretion, by Agent or by Required Lenders that one or more means of a credit to the general deposit account of the applicable conditions set forth in Section 8.2 Borrower with the Administrative Agent by 3:00 p.m., Philadelphia time, on the requested date of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reasonsuch Swing Loan.
(c) Upon The Swing Bank may by written notice given to the making Administrative Agent not later than 12:00 noon, Philadelphia Time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of a the Swing Loans outstanding, together with interest accrued thereon. Such notice shall specify the aggregate amount of Swing Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender's pro rata share of such Swing Loan (whether before or after Loans, together with interest accrued thereon, which pro rata share shall be based upon the proportion that such Lender's Revolving Credit Commitment bears to the Total Revolving Credit Commitment. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swing Bank, such Lender's pro rata share of such Swing Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swing Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or reduction or termination of the Revolving Credit Commitments, and regardless of whether a Settlement has been requested that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph in the same manner as provided in Section 2.2(d) with respect to Revolving Credit Loans made by such Lender and the Administrative Agent shall promptly pay to the Swing Loan), each Lender holding a Revolving Commitment Bank the amounts so received by it from the Lenders. The Administrative Agent shall be deemed, without further action by notify the Borrower of 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunderLoan acquired pursuant to this paragraph, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all and thereafter 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 Commitment Loan shall be obligated in any event made to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment the Administrative Agent and not to the Swing Bank. Any amounts received by the Swing Bank from the Borrower (taking into account any reallocations under Section 2.22) or other party on behalf of the Maximum Undrawn Amount applicable Borrower) in respect of all outstanding Letters a Swing Loan after receipt by the Swing Bank of Creditthe proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lender that shall have made their payments pursuant to this paragraph and to the Swing Bank, as their interests may appear. The purchase of participations in a Swing Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) The Swing Loans made by the Swing Bank on any date shall be in a minimum amount of $250,000.00 and in integral multiples of $100,000.00.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and conditions set forth in this Agreement, and in order upon Borrower’s request on any Business Day prior to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Commitments and Swing Loan Lender agree that in order to facilitate the administration of this AgreementTermination Date, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, shall make swing loan advances Alternate Base Rate Loans under the Swing Note (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the date hereof to, but not including, the expiration of 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 aggregate principal amount of the outstanding Revolving Advances, plus the Letter of Credit Liabilities, plus the aggregate principal amount of the outstanding Swing Loans shall never exceed the Combined Commitments; and the Revolving Advances at any one time outstanding provided, further, that Swing Lender shall not exceed make Swing Loans if an Event of Default or an Unmatured Event of Default has occurred and is continuing. 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. Borrower shall request a Swing Loan by written notice to Swing Lender.
(b) The unpaid principal amount of the Swing Loans shall bear interest prior to maturity at a varying rate per annum equal from day to day to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit Rate or (ii) the Formula Amount. All Swing Loan-Applicable Rate in effect from day to day, and each change in the rate of interest charged on the Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at become effective, without notice to Borrower, on the option and election effective date of Swing Loan Lender), repay and 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 each change in the form attached hereto Swing Loan-Applicable Rate or the Maximum Rate, as Exhibit 2.4(a). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable the case may be; provided, however, if at any time for any reason whatsoever and the making rate of interest specified in clause (b)(ii) preceding shall exceed the Maximum Rate, thereby causing the interest on the Swing Loans by to be limited to the Maximum Rate, then any subsequent reduction in the Swing Loan Lender from time to time Loan-Applicable Applicable Rate shall not create any duty or obligation, or establish any course reduce the rate of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make interest on the Swing Loans below the Maximum Rate until the aggregate amount of interest actually accrued on the Swing Loans equals the amount of interest which would have accrued on the Swing Loans if the interest rate specified in clause (b)(ii) preceding had at all times been in effect. Notwithstanding the futureforegoing, if any Event of Default has occurred and is continuing, the outstanding principal of the Swing Loans shall, upon the determination of the Swing Lender, bear interest at the Default Rate.
(bc) Upon either Borrower shall repay the outstanding principal amount of the Swing Loans on the Termination Date. Borrower shall pay the accrued interest on the Swing Loans on the last day of each March, June, September and December, commencing December 31, 2011. Borrower may prepay the Swing Loans, together with accrued interest thereon, at any time.
(d) If (i) any Swing Loan advanced hereunder is not repaid within five (5) Business Days following the date such Swing Loan is advanced or (ii) Swing Lender at any time in its sole and absolute discretion requests on behalf of Borrower (which Borrower hereby authorizes Swing Lender to so request on its behalf), that each Lender make a Revolving Advance that is an Alternate Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of such Swing Loan then outstanding, then, upon the giving of notice to the Lenders in accordance with the following sentence, each Lender shall pay to Swing Lender such Lender’s Pro Rata Share of such Swing Loan. In connection with any Revolving Advance to be made to refinance any Swing Loan as contemplated by Borrowing the foregoing sentence, Swing Lender shall give a notice to Agent for prior to 12:00 noon on (i) the sixth (6th) Business Day following the date such Swing Loan is advanced or (ii) such other day that Swing Lender makes a request on behalf of Borrower as set forth above, and Agent shall give each Lender a notice by 1:00 p.m. on such date, to make an Alternate Base Rate Loan in the amount of its Pro Rata Share of such Swing Loan. Each Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed each request made by Borrowers for a Revolving Advance Swing Lender pursuant to the provisions foregoing sentence shall be considered to be a Revolving Advance, and Borrower hereby irrevocably instructs Swing Lender to apply the proceeds of Section 2.2(a), such Revolving Advances to the prepayment of such Swing Loan Loan. Each Lender may elect, (including Swing Lender in its sole discretion, to have such request or deemed request treated capacity as a request for a Swing LoanLender) shall make its Pro Rata Share of such Revolving Advance available to Agent in immediately available funds by 3:00 p.m. on the date requested, and may advance same day funds the obligation to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for hereinfund such Revolving Advance shall be unconditional, Swing Loan Lender may not make Swing Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more irrespective of the applicable conditions set forth in Section 8.2 occurrence, existence or continuance 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 or Unmatured Event of whether Default.
(e) If, prior to refinancing a Settlement has Swing Loan with a Revolving Advance as provided above, an Event of Default under Section 10.1(d) or 10.1(e) shall have occurred or if for any other reason a Revolving Advance cannot be made, then each Lender will, on the date on which the Revolving Advance was to have been requested with respect made or such other date as is designated by Swing Lender, purchase from the Swing Lender an undivided participation interest in all the outstanding Swing Loans in an amount equal to its Pro Rata Share of such Swing LoanLoans. Upon request from Agent (which shall be given by Agent to Lenders immediately following receipt by Agent of notice from Swing Lender), each Lender holding a Revolving Commitment shall be deemed, without further action by any party hereto, will immediately transfer such amount 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (Insperity, 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, Lenders holding Revolving Commitments 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 date hereof to, but aggregate of such advance and amount of Swing Loans theretofore advanced and still outstanding does not including, at any time exceed the expiration 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 of available 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 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 due and payable, in full, at 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 hereto as Exhibit 2.4(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 (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
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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, Lenders holding Revolving Commitments and Swing Loan Lender agree that shall make, in order to facilitate the administration of this AgreementDollars, loans (each 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”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 date hereof to, but not including, period from the expiration of Closing Date until 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 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 other Swing Loan Lender), repay and reborrow (at made by the option and election of Swing 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 aggregate Revolving Credit Commitments. 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 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 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 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 of the details of the requested Swing Loan. Subject to the terms of this Agreement, 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 “Swing Loan Note”) substantially available to the Administrative Agent and, in turn, the form attached hereto as Exhibit 2.4(a). Administrative Agent shall make such amounts available to the Borrower on the date of the relevant 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 Request. The Swing Loan Lender shall thereafter be obligated to not make any Swing Loans Loan in the future.
(b) Upon either (i) any request by Borrowing period commencing on the first Business Day after it receives written notice from the Administrative Agent for a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans if Swing Loan Lender has been notified by Agent or by Required Lenders 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 3.2 (Conditions Precedent to Each Loan and Letter of this Agreement 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 its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving Credit Lender pay to such Swing Loan)the Administrative Agent, each Lender holding a Revolving Commitment shall be deemed, 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 be paid pursuant to such demand, and, notwithstanding whether or Agent may, at any time, require not the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for conditions precedent set forth in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 3.2 (taking into account any reallocations under Section 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
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Sources: Credit Agreement (Datapath 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, Lenders holding Revolving 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 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 date hereof to, but not including, period from the expiration of Effective Date until 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans if Loan (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 of this Agreement 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(f) below. From and after the date, if any, date on which any Lender holding is deemed to have made a Revolving Commitment is required Loan pursuant to fund, and funds, its participation in 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 Loan other than those received from a Lender holding a Revolving Commitment 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 2.22d) 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, Lenders holding Revolving 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 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 period from the date hereof to, but not including, until the expiration 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 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 reborrow (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 hereto as Exhibit 2.4(a). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) details of the Maximum Undrawn Amount of all outstanding Letters of Credit.requested Swing
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, Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a “Swing Loan”) otherwise available to have the U.S. Borrowers 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 the Swing Loan Lender) not to exceed the Swing Loan Sublimit, notwithstanding the fact that such request Swing Loans, when aggregated with the Swing Loan Lender’s Ratable Portion of all other Revolving Credit Outstandings and Protective Advances of the Lender acting as the Swing Loan Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided, however, that at no time shall the Swing Loan Lender make any Swing Loan (i) to the Canadian Borrower or deemed request treated as a request for a (ii) to the extent that, after giving effect to such Swing Loan, (x) the aggregate Revolving Credit Outstandings would exceed the Maximum Credit or (y) any Revolving Credit Lender’s Ratable Portion of all Revolving Credit Outstandings exceeds such Revolving Credit Lender’s Revolving Credit Commitment; 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 Swing Loans with the prior consent of the Administrative Agent. 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 advance same day funds to Borrowers as a Swing Loanbe reborrowed under this clause (a); provided that notwithstanding anything the U.S. Borrowers shall not use the proceeds of any Swing Loans to refinance any outstanding Swing Loans. The Administrative Agent, on behalf of the contrary provided for herein, Swing Loan Lender, shall request settlement (a “Settlement”) with the Revolving Credit Lenders on at least a weekly basis, by notifying the Revolving Credit Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 1:00 p.m. New York City time on the date of such requested Settlement (the “Settlement Date”). Each Revolving Credit Lender may not make Swing Loans if (other than the Swing Loan Lender has been notified by Agent or by Required Lenders that one or more Lender, in the case of the Swing Loans) shall transfer the amount of such Revolving Credit Lender’s Ratable Portion of the outstanding principal amount of the applicable conditions set forth in Section 8.2 Loan with respect to which Settlement is requested to the Administrative Agent, to such account of this Agreement have the Administrative Agent as the Administrative Agent may designate, not been satisfied or later than 3:00 p.m., New York City time, on such Settlement Date. Settlements may occur during the Revolving Commitments have been terminated for any reason.
(c) Upon the making existence of a Swing Loan (whether before or after the occurrence of a Default or an Event of Default and regardless whether or not the applicable conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter of whether a Settlement has Credit) have then been requested with respect satisfied. Such amounts transferred to such Swing Loan), each Lender holding a Revolving Commitment the Administrative Agent shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from applied against the amounts of the Swing Loan Lender’s Swing Loans and, without recourse or warranty, an undivided interest and participation in such together with Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 Lender’s Ratable Portion of such Swing Loan; provided that no , shall constitute Revolving Credit Loans of such Revolving Credit Lenders, respectively. If any such amount is not transferred to the Administrative Agent by any Revolving Credit Lender holding a Revolving Commitment on such Settlement Date, the Swing Loan Lender shall be obligated entitled to recover such amount on demand from such Lender together with interest thereon, for each day from the applicable Settlement Date until the date such amount is repaid to the Swing Loan Lender as specified in any event Section 2.2(c)(ii) (Borrowing Procedures).
(b) In order to make Revolving Advances request a Swing Loan, the Borrower Representative shall send to the Administrative Agent a duly completed written request in substantially the form of Exhibit D (Form of Swing Loan Request), setting forth (i) whether the Borrower Representative is requesting a Swing Line Loan on its own behalf or on behalf of one or more other U.S. Borrowers (and the names of such other U.S. Borrowers, if applicable), (ii) the requested amount of such Swing Loan, which shall be a minimum of $1,000,000 and in an amount integral multiple of $500,000 in excess thereof, (iii) the requested date of its Revolving Commitment Amount minus its Participation Commitment such Swing Loan, which shall be a Business Day, (taking into account any reallocations under Section 2.22iv) the Deposit Account(s) or Securities Account(s) of the Maximum Undrawn Amount applicable U.S. Borrower to be credited with the proceeds of all outstanding Letters such Swing Loan and (v) the Available Credit after giving effect to such Swing Loan and calculated based on the most recent Borrowing Base Certificate delivered to the Administrative Agent in accordance with the terms of Credit.this Agreement and as modified by any Reserves established or modified by the Administrative Agent in accordance with the terms of this Agreement prior to the date of such request (a “Swing Loan Request”), to be received by the Administrative Agent not later than 1:00 p.m. (New York City
Appears in 1 contract
Sources: Credit Agreement (UTi WORLDWIDE 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, Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans if 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 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 3.2 (Conditions Precedent to Each Loan and Letter of this Agreement 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 its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving Credit Lender pay to such Swing Loan)the Administrative Agent, each Lender holding a Revolving Commitment shall be deemed, 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 Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment 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 Lender holding a Revolving 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 Sections 3.2 (taking into account any reallocations under Section 2.22) 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, Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans if 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 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 3.2 (Conditions Precedent to Each Loan and Letter of this Agreement 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 its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving Credit Lender pay to such Swing Loan)the Administrative Agent, each Lender holding a Revolving Commitment shall be deemed, 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 Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment 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 Lender holding a Revolving 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 Sections 3.2 (taking into account any reallocations under Section 2.22) 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 Commitments 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 date hereof to, but not including, the expiration 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 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 hereto as Exhibit 2.4(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. 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below2.1(d). From and after the date, if any, on which any Lender holding a Revolving 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 Lender holding a Revolving 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 2.22) 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 holding Revolving 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 date hereof to, but not including, the 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 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). 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) 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), 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 Loans 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 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 Revolving 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 Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Revolving Lender holding a Revolving Commitment 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 holding a Revolving 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 2.22) 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 Agent for administrative convenience, Agent, Lenders holding Revolving Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, during the Commitment Period applicable to the General Revolving Commitment, the Swing Line Lender 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 hereunder if, after giving effect thereto, (A) the General Revolving Commitment Exposure would exceed the Maximum General Revolving 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. Each Swing Loan shall be made in Dollars. Borrower shall pay interest, for the sole benefit of the Swing Line Lender (and any General Revolving Lender that shall have purchased a participation in such Swing Loan), on the unpaid principal amount of each Swing Loan outstanding from time to time from the date hereof tothereof until paid, but not includingat 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 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 payable to the order of the Swing Line Lender in the principal amount of the Swing Line Commitment, or, if less, the 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 unpaid principal amount of Swing Loans and made hereunder by the Revolving Advances at any one time outstanding shall not exceed an amount equal Swing Line Lender. 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, Borrower shall be Domestic Rate Loans only. Borrowers may entitled under this Section 2.1(a)(iii) to borrow (at the option and election of Swing Loan Lender)funds, repay the same in whole or in part and 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). 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 shall not create any duty or obligation, or establish any course of conduct, pursuant during the Commitment Period applicable to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in the futureGeneral Revolving Commitment.
(ba) Upon either (i) any request by Borrowing Agent for hereof. Each General Revolving Lender agrees to make a General Revolving Advance made Loan on the date of such notice, subject to no conditions precedent whatsoever. Each General Revolving Lender acknowledges and agrees that such General Revolving Lender's obligation to make a General Revolving Loan pursuant to Section 2.2(a2.1(a)(i) or (iihereof when required by this Section 2.1(a)(iii) shall be 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 the Swing Line Lender, for the account of the Swing Line Lender, of the proceeds of such General Revolving Loan shall be made without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether or not such General Revolving Lender's General Revolving Commitment shall have been reduced or terminated. Borrower irrevocably authorizes and instructs the Swing Line Lender 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, the Swing Line Lender shall be unable or, in the opinion of the Swing Line Lender, it shall be impracticable, to convert any Swing Loan to a General Revolving Advance Loan pursuant to the provisions of Section 2.2(a)preceding paragraph, Swing Loan Lender may electthen, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, and may advance same 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 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 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 shall be outstanding (whether before or after the maturity thereof), the Swing Line Lender shall have the right to request that each General Revolving Lender purchase a participation in such Swing Loan, and the Swing Line Lender shall promptly notify each General Revolving Lender thereof (by facsimile or telephone, confirmed in writing). Upon such notice, but without further action, the Swing Line Lender hereby agrees to grant to each General Revolving Lender, and each General Revolving Lender hereby agrees to acquire from the Swing Line Lender, an undivided participation interest in such Swing Loan in an amount equal to such General Revolving Lender's Applicable Commitment Percentage of the aggregate principal amount of such Swing Loan. In consideration and in furtherance of the foregoing, each General Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Swing Line Lender, for its sole account, such General Revolving Lender's ratable share of such Swing Loan (determined in accordance with such General Revolving Lender's Applicable Commitment Percentage). Each General Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swing Loans pursuant to this Section 2.1(a)(iii) shall be 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 General Revolving Lender's General Revolving Commitment shall have been reduced or terminated. Each General Revolving Lender shall comply with its obligation under this Section 2.1(a)(iii) by wire transfer of whether a Settlement has been requested immediately available funds, in the same manner as provided in Section 2.2 hereof with respect to General Revolving Loans to be made by such Swing Loan), each General Revolving Lender. Each General Revolving Lender holding a is hereby authorized to record on its records such General Revolving 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 's Pro Rata Share of the Maximum Undrawn Amount of all outstanding Letters of Creditamounts paid and not reimbursed on the Swing Loans.
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 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 date hereof Closing Date to, but not including, the expiration 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 reborrow 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 Loans 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 of this Agreement 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.222.22 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. (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, Lenders holding Revolving 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 Wachovia shall from time to time after time, upon the date hereof to, but not including, the expiration 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 exceeding $15,000,000; provided that, immediately after such Swing Loan is made, the outstanding amount of the Maximum Swing Loan Advance AmountSyndicated Loans, provided that the outstanding aggregate principal amount of Money Market Loans, and Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (iA) the Maximum Revolving Advance Amount less aggregate amount of the Maximum Undrawn Amount of all outstanding Letters of Credit or Commitments and (iiB) the Formula AmountBorrowing Base. Within the foregoing limits, the Borrower may borrow under this Section 2.01(b), prepay and reborrow under this Section 2.01(b) at any time before the Termination Date. All Swing Loans shall be Domestic made as either Base Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender)or, repay and 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant subject to the provisions of Section 2.2(aclause (ii) below, Transaction Rate Loans.
(ii) 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 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 on or after the occurrence of an Event of Default, 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 Loan Lender may electLoans in an amount equal to its ratable share (based upon its respective Commitment) of such Swing Loans, and Wachovia shall furnish each Bank with a certificate evidencing such participating interest. On such third Domestic Business Day, each Bank will immediately transfer to Wachovia, in immediately available funds, the amount of its sole discretionparticipation. Whenever, to have at any time after Wachovia has received from any such request or deemed request treated as a request for 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 may advance same day funds funded); provided, however, that in the event that such payment received by the Administrative Agent is required to Borrowers as a Swing Loan; provided that notwithstanding anything be returned, such Bank will return to the contrary provided for hereinAdministrative 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 be affected by any circumstance, Swing Loan Lender including, without limitation: (1) any set-off, counterclaim, recoupment, defense or other right which such Bank or any other Person may not make Swing Loans if Swing Loan Lender has been notified by Agent have against Wachovia requesting such purchase or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 of this Agreement have not been satisfied or the Revolving Commitments have been terminated any other Person for any reason.
reason whatsoever; (c2) Upon the making of a Swing Loan (whether before or after the occurrence or 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 Lender holding a Revolving Commitment shall be deemed, without further action by the Commitments; (3) 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 Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22otherwise) of the Maximum Undrawn Amount Borrower or Guarantor; (4) any breach of all outstanding Letters this Agreement by the Borrower or any other Bank; or (5) any other circumstance, happening or event whatsoever, whether or not similar to any of Creditthe foregoing.
Appears in 1 contract
Sources: Credit Agreement (Amli Residential Properties 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, Lenders holding Revolving 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 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 period from the date hereof to, but not including, until the expiration 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Lender holding is deemed to have made a Revolving Commitment is required Credit Loan pursuant to fund, and funds, its participation in 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 Loan other than those received from a Lender holding a Revolving Commitment 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 2.22e) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
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, Lenders holding Revolving 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, 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 date hereof to, but not including, the expiration of the Term, Revolving A Loan Maturity Date 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 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 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 hereto as Exhibit 2.4(a). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 of this Agreement 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 (whether before Line Lender to Administrative Agent that some or after all of the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect Swing Loans be converted to such Swing Loan)Revolving A Loans, then, on the next Business Day, Administrative Agent shall notify each Lender holding a 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 shall be deemedPercentage thereof. Each Lender shall, without further action by any party heretobefore 9:00 a.m. (Pacific Time) on the next Business Day, make available to have unconditionally and irrevocably purchased from Swing Loan LenderAdministrative Agent, without recourse or warrantyin immediately available funds, an undivided interest and participation in such Swing Loan in proportion to the amount of its Revolving Commitment Percentage. Swing A Loan Lender or Agent may, at any time, require the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 such principal and interest and all proceeds of Collateral received by Agent in respect amount of such Swing Loan; provided that no Loans.
(d) Upon any payment by a Lender holding pursuant to Section 2.2(b) or (c), such Lender shall be deemed to have made a Revolving Commitment 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 Borrower agree that Swing Loans may be obligated in any event made to make Revolving Advances in an amount in excess allow Administrative Agent to pay each Lender its share of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.22) of fees, interest and other amounts due hereunder to the Maximum Undrawn Amount of all outstanding Letters of Creditextent such fees, interest and other 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, Lenders holding Revolving 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 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 date hereof to, but not including, period from the expiration of Effective Date until 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans if Loan (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 of this Agreement 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(f) below. From and after the date, if any, date on which any Lender holding is deemed to have made a Revolving Commitment is required Loan pursuant to fund, and funds, its participation in 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 Loan other than those received from a Lender holding a Revolving Commitment 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 2.22d) 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, Lenders holding Revolving Commitments 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 date hereof to, but not including, period from the expiration of Closing Date until 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Revolving Credit Lender holding (i) is deemed to have made a Revolving Commitment 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 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 Lender holding Loan other than those received from a Revolving Commitment shall be obligated in any event Credit Lender 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 2.22e) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
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, Lenders holding Revolving 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, 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 date hereof to, but not including, the expiration of the Term, Maturity Date 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 reborrow (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 hereto as Exhibit 2.4(a). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 of this Agreement 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 (whether before Line Lender to Administrative Agent that some or after all of the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect Swing Loans be converted to such Swing Loan)Revolving Loans, then, on the next Business Day, Administrative Agent shall notify each Lender holding a Revolving Commitment shall 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 deemedconverted) and each Lender’s Applicable Percentage thereof. Each Lender shall, without further action by any party heretobefore 9:00 a.m. (Pacific Time) on the next Business Day, make available to have unconditionally and irrevocably purchased from Swing Loan LenderAdministrative Agent, 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment is required to fund, and immediately available funds, the amount of its participation in any Swing Loans purchased hereunder, Agent shall promptly distribute to such Lender its Revolving Commitment Applicable Percentage of all payments of such principal and interest and all proceeds of Collateral received by Agent in respect amount of such Swing Loan; provided that no Loans.
(d) Upon any payment by a Lender holding pursuant to Section 2.2(b) or (c), such Lender shall be deemed to have made a Revolving Commitment 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 Borrower agree that Swing Loans may be obligated in any event made to make Revolving Advances in an amount in excess allow Administrative Agent to pay each Lender its share of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.22) of fees, interest and other amounts due hereunder to the Maximum Undrawn Amount of all outstanding Letters of Creditextent such fees, interest and other 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, the Lenders holding Revolving 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 date hereof Closing Date to, but not including, the expiration 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 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(a2.14(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; Loan; provided that notwithstanding anything to the contrary provided for herein, Swing Loan Lender may not make Swing Loans 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below2.10(d). From and after the date, if any, on which any Lender holding a Revolving 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; Loan; provided that no Lender holding a Revolving 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 2.222.13) 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 Revolving Lenders and Agent for administrative convenience, Agent, Revolving Lenders holding Revolving 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 date hereof Closing Date to, but not including, the expiration 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 plus the lesser Dollar Equivalent of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) outstanding at such time shall not exceed the Formula AmountTotal Ex-Im Borrowing Availability 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 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(a2.4. 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.
(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 aggregate principal amount of Swing Loans and the Revolving Advances at any one time outstanding plus the Dollar Equivalent of the Maximum Undrawn Amount of all Letters of Credit outstanding at such time shall not exceed the Total Ex-Im Borrowing Availability 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 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. 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 Loans 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 of this Agreement 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 holding a Revolving 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 Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Revolving Lender holding a Revolving Commitment 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 holding a Revolving Commitment 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 2.222.22 hereof) of the Dollar Equivalent of the Maximum Undrawn Amount of all outstanding Letters of CreditCredit outstanding at such time minus its Domestic Revolving Commitment Percentage of the Domestic Outstandings Amount at such time.
Appears in 1 contract
Sources: Export Import Revolving Credit, 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, Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), Swing Loan Lender may elect, in its sole discretion, make loans (each a "Swing Loan") otherwise available to have the Borrowers under the Revolving Credit Facility from time to time on any Business Day during the period from the date hereof until the Scheduled Termination Date in an aggregate principal amount at any time outstanding not to exceed the lesser of $25,000,000 and the Swing Loan Lender's Ratable Portion of the Domestic Available Credit or Foreign Available Credit, as the case may be, at such time. 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 Scheduled 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 Company 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 (which shall be in a minimum amount of $500,000 or an integral multiple of $100,000 in excess thereof) and may advance same 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 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 Loans if 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 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 of this Credit 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.EXIDE TECHNOLOGIES
Appears in 1 contract
Sources: Secured Super Priority Debtor in Possession Credit Agreement (Exide 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, the Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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 Loans 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d2.20(c) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 holding Revolving 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 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 date hereof Closing Date to, but not including, the expiration 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 reborrow 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)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 Loans 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 of this Agreement 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 holding a Revolving 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 Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Revolving Lender holding a Revolving Commitment 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 holding a Revolving 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 2.222.22 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, Lenders holding Revolving Commitments 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 hereof tothereof 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, but not includingdated the Closing Date, and payable to the order of Agent in the principal amount of the Swing Loan Commitment, or, if less, the 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 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 reborrow (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 hereto as Exhibit 2.4(a). 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 shall not create any duty or obligationBanks (other than the Canadian Banks and, or establish any course of conducton and after the Activation Date, pursuant to which Swing Loan Lender shall thereafter be obligated to make Swing Loans in only the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(aDomestic Banks), Swing Loan Lender may electBorrower agrees that Agent shall have the right, 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 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 of this Agreement 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 Lender holding a Revolving 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (Applied Industrial Technologies Inc)
Swing Loans. (a) Subject to In the terms and conditions set forth in this Agreementcase of a request for a Revolving Loan, and in order so long as the aggregate amount of Swing Loans made since the last Settlement Date, minus the amount of payments applied to minimize Swing Loans since the transfer last Settlement Date, plus the amount of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding the requested Revolving Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreementdoes not exceed Five Million Dollars ($5,000,000), Swing Lender may make such Revolving Loan in the amount of such Borrowing (any such Revolving Loan made solely by Swing Lender may, at its election pursuant to this Section 2.15 being referred to as a “Swing Loan” and option made in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances (such Revolving Loans being referred to collectively as “Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after Borrower on the date hereof to, but not including, the expiration of the Term, in an aggregate principal amount up such Borrowing is to but not in excess of the Maximum be made by transferring immediately available funds into Borrower’s Account. Each Swing Loan Advance Amountshall be deemed to be a Revolving Loan hereunder and shall be subject to all the terms and conditions (including Article 4) applicable to other Revolving Loans, provided except that the outstanding aggregate principal amount of all payments on any Swing Loans and the Revolving Advances at any one time outstanding Loan shall be payable to Swing Lender solely for its own account prior to Settlement. Swing Lender 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 make and election of Swing Loan Lender), repay and 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans if Swing Loan Lender has been notified actual knowledge, including any notification by Agent or by Required Lenders another Lender, that one or more of the applicable conditions precedent set forth in Section 8.2 of this Agreement Article 4 will not be satisfied on the date such Borrowing is to be made. Swing Lender shall not otherwise be required to determine whether the applicable conditions precedent set forth in Article 4 have not been satisfied or on the Revolving Commitments have been terminated for date such Borrowing is to be made 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 Lender holding a Revolving Commitment . The Swing Loans shall be deemedsecured by Administrative Agent’s Lien, 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment is required to fundconstitute Obligations hereunder, and funds, its participation in any Swing bear interest at the rate applicable from time to time to Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Creditare Base Lending Rate Portions.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Motorcar Parts America 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, Lenders holding Revolving 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 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 date hereof toClosing Date but before the Maturity Date, but not including, upon the expiration 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 reborrow (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 hereto as Exhibit 2.4(a). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 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 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 fund its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment 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 Lender holding a Revolving 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.Swing
Appears in 1 contract
Sources: Senior Secured Credit Facility (TransMontaigne Partners L.P.)
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 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 2.3 at any time or from time to time after the date hereof to, but not including, the expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, [Innovex] 3rd A&R Credit Agreement 55 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 Borrower may borrow (at the option and election of Swing Loan Lender), repay and 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 2.3 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(a2.3(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 (i) any request by Borrowing Agent Borrower for a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers Borrower for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d2.5(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.222.21) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit Agreement (Innovex International, Inc.)
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, Lenders holding Revolving 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 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 Borrowers as provided for in this Section 2.4 at any time or the Borrower from time to time after on any Business Day during the date hereof to, but not including, period from the expiration of Closing Date until 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 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 denominated in Dollars and must be repaid in full upon any Borrowing hereunder and shall in any event mature no later than the Revolving Credit Termination Date (at for the option and election Class of Revolving Credit Commitments with the Latest Maturity Date held by the Swing Loan Lender), repay and reborrow (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 hereto as Exhibit 2.4(afirst sentence of this clause (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 , 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 the 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) or be borrowed and (ii) the occurrence date of any deemed request 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), 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 Loans Loan 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 4.2 is not then satisfied, in each case, other than as a result of a Protective Advance, then, subject to the terms and conditions this Agreement have not been satisfied 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 Borrower as promptly as reasonably practicable either by (i) crediting the account of the Borrower on the books of the Swing Loan Lender with the amount of such funds or (ii) 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 the Borrower.
(c) Upon the making of a The Swing Loan Lender may demand at any time (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 shall demand, not less frequently than weekly unless such Swing LoanLoan is repaid in accordance with Section 2.3(a) hereof), that each Revolving Credit Lender holding a Revolving Commitment 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 or warranty, an undivided interest and participation in such Swing Loan the manner provided in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(dclause (d) below. From , 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 the date, if any, 2:00 p.m. on which any Lender holding Business Day or any such notice or demand received on a Revolving Commitment day that is not a Business Day shall not be required to fundbe forwarded to the Revolving Credit Lenders by the Administrative Agent until the next succeeding Business Day), and funds, its participation in any Swing Loans purchased hereunder, together with a statement prepared by the Administrative Agent shall promptly distribute to such Lender its specifying the amount of each Revolving Credit Lender’s Revolving Commitment Percentage of all payments 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 Borrower (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 the 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 interest 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 all proceeds in Same Day Funds, for the account of Collateral received 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) 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 submitted by the 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 rate per annum equal to the applicable Overnight Rate from time to time, plus any administrative, processing or 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; provided that no , as the case may be. A certificate of the Swing Loan Lender holding a submitted to any Revolving Commitment Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (e) shall be obligated in any event prima facie evidence thereof absent manifest error.
(f) Each Revolving Credit Lender’s obligation to make Revolving Advances Loans or to purchase and fund risk participations in an amount Swing Loans pursuant to this Section 2.3 shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Loan Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default, (iii) the Class of any such Loans or (iv) 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 excess 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 the Borrower to repay Swing Loans made for the Borrower’s account, together with interest as provided herein.
(g) 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 Commitment Amount minus its Participation Commitment Credit Percentage (taking into account determined without regard to any reallocations 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 Section 2.22) any of the Maximum Undrawn Amount 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 responsible for invoicing the Borrower for interest on the Swing Loans. Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.3 to refinance such Revolving Credit Lender’s Revolving Credit Percentage of any Swing Loan, interest in respect of such Revolving Credit Percentage of such Lender shall be solely for the account of the Swing Loan Lender.
(j) The Borrower shall make all outstanding Letters payments with respect to Swing Loans directly to the Administrative Agent for the benefit of Creditthe Swing Loan Lender.
Appears in 1 contract
Sources: 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, Lenders holding Revolving 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 date hereof Seventh Amendment and RestatementEffective Date to, but not including, the expiration 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 reborrow 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 by Borrowers in favor of Swing Loan Lender substantially in the form attached as Exhibit 2.4(a) hereto (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(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 (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 Loans 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 of this Agreement 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.222.22 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 During the Commitment Period, the Swing Line 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, Lenders holding Revolving Commitments and make a Swing Loan Lender agree that in order or Swing Loans to facilitate the administration of this AgreementCompany, which Swing Loans (A) shall be payable on the Swing Loan Lender mayMaturity Date applicable to each such Swing Loan; (B) shall be made only in Dollars; (C) may be repaid or prepaid and reborrowed in accordance with the provisions hereof; (D) may only be made if after giving effect thereto (1) the Swing Line Facility Exposure would not exceed the Swing Line Commitment, at its election and option (2) the Aggregate Revolving Exposure would not exceed the Total Revolving Commitment; (E) shall not be made in its sole discretion cancelable at if, after giving effect thereto, any time for any reason whatsoever, make swing loan advances Borrower would be required to prepay Loans or cash collateralize Letters of Credit pursuant to Section 3.02(b); and (“Swing Loans”F) available shall not be made if the proceeds thereof would be used to Borrowers as provided for in this Section 2.4 at any time or from time to time after the date hereof to, but not including, the expiration of the Termrepay, in an aggregate principal amount up to but not whole or in excess of part, any outstanding Swing Loan. On the Maximum day that a Swing Loan Advance Amount, provided that is made by the outstanding Swing Line Lender and after giving effect to such Swing Loan the aggregate principal amount of Swing Loans and outstanding at such time would exceed the Revolving Advances at any one time Funded Swing Loan Threshold, the Funded Swing Line Participant shall (x) be deemed to have purchased an undivided participating interest in all outstanding shall not exceed Swing Loans in an amount equal to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount 50% 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 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 “Funded Swing Loan NoteLine Participation Amount”) substantially and (y) pay to the Swing Line Lender, in immediately available funds, the form attached hereto as Exhibit 2.4(a)Funded Swing Line Participation Amount. If any amount required to be paid by the Funded 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, Line Participant pursuant to which the above is not paid on the date such payment is due, the Funded Swing Loan Line Participant shall pay to the Swing Line Lender on demand interest on the amount not so paid at the overnight Federal Funds Effective Rate from the due date until such amount is paid in full. The Swing Line Lender shall thereafter be obligated remit to make the Funded Swing Line Participant its pro rata portion of interest due and payable under Section 4.02 hereof in respect of the Funded Swing Line Participation Amount promptly after receipt of such interest by the Company. The obligations of the Funded Swing Line Participant to participate in Swing Loans in accordance with the future.
(b) Upon either (i) any request by Borrowing Agent for foregoing are in addition to its obligations as a Revolving Advance made Lender to participate in Swing Loans pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a2.01(c)(ii), 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 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Swing Loans. (a) Subject to On the terms and conditions set forth in this Agreement, and in order upon Borrower’s request on any Business Day prior to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving Commitments and Swing Loan Lender agree that in order to facilitate the administration of this AgreementTermination Date, Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, shall make swing loan advances Alternate Base Rate Loans under the Swing Note (“Swing Loans”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after the date hereof to, but not including, the expiration of the Term, Borrower in an aggregate principal amount up not to but not in excess of the Maximum Swing Loan Advance Amount, exceed $30,000,000.00 outstanding at any time; provided that the outstanding aggregate principal amount of the outstanding Revolving Advances, plus the Letter of Credit Liabilities, plus the aggregate principal amount of the outstanding Swing Loans shall never exceed the Combined Commitments; and the Revolving Advances at any one time outstanding provided, further, that Swing Lender shall not exceed make Swing Loans if an Event of Default or an Unmatured Event of Default has occurred and is continuing. Subject to the other provisions of this Agreement, Borrower may from time to time borrow, prepay (in whole or in part Amended and Restated Credit Agreement v7 22 and without premium or penalty) and reborrow Swing Loans. Borrower shall request a Swing Loan by written notice to Swing Lender.
(a) The unpaid principal amount of the Swing Loans shall bear interest prior to maturity at a varying rate per annum equal from day to day to the lesser of (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit Rate or (ii) the Formula Amount. All Swing Loan-Applicable Rate in effect from day to day, and each change in the rate of interest charged on the Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at become effective, without notice to Borrower, on the option and election effective date of Swing Loan Lender), repay and 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 each change in the form attached hereto Swing Loan-Applicable Rate or the Maximum Rate, as Exhibit 2.4(a). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable the case may be; provided, however, if at any time for any reason whatsoever and the making rate of interest specified in clause (b)(ii) preceding shall exceed the Maximum Rate, thereby causing the interest on the Swing Loans by to be limited to the Maximum Rate, then any subsequent reduction in the Swing Loan Lender from time to time Loan-Applicable Applicable Rate shall not create any duty or obligation, or establish any course reduce the rate of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make interest on the Swing Loans below the Maximum Rate until the aggregate amount of interest actually accrued on the Swing Loans equals the amount of interest which would have accrued on the Swing Loans if the interest rate specified in clause (b)(ii) preceding had at all times been in effect. Notwithstanding the futureforegoing, if any Event of Default has occurred and is continuing, the outstanding principal of the Swing Loans shall, upon the determination of the Swing Lender, bear interest at the Default Rate.
(b) Upon either Borrower shall repay the outstanding principal amount of the Swing Loans on the Termination Date. Borrower shall pay the accrued interest on the Swing Loans on the last day of each March, June, September and December, commencing March 31, 2018. Borrower may prepay the Swing Loans, together with accrued interest thereon, at any time.
(c) If (i) any Swing Loan advanced hereunder is not repaid within five (5) Business Days following the date such Swing Loan is advanced or (ii) Swing Lender at any time in its sole and absolute discretion requests on behalf of Borrower (which Borrower hereby authorizes Swing Lender to so request on its behalf), that each Lender make a Revolving Advance that is an Alternate Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of such Swing Loan then outstanding, then, upon the giving of notice to Lenders in accordance with the following sentence, each Lender shall pay to Swing Lender such Lender’s Pro Rata Share of such Swing Loan. In connection with any Revolving Advance to be made to refinance any Swing Loan as contemplated by Borrowing the foregoing sentence, Swing Lender shall give a notice to Agent for prior to 12:00 noon on (i) the sixth (6th) Business Day following the date such Swing Loan is advanced or (ii) such other day that Swing Lender makes a request on behalf of Borrower as set forth above, and Agent shall give each Lender a notice by 1:00 p.m. on such date, to make an Alternate Base Rate Loan in the amount of its Pro Rata Share of such Swing Loan. Each Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed each request made by Borrowers for a Revolving Advance Swing Lender pursuant to the provisions foregoing sentence shall be considered to be a Revolving Advance, and Borrower hereby irrevocably instructs Swing Lender to apply the proceeds of Section 2.2(a), such Revolving Advances to the prepayment of such Swing Loan Loan. Each Lender may elect, (including Swing Lender in its sole discretion, to have such request or deemed request treated capacity as a request for a Swing LoanLender) shall make its Pro Rata Share of such Revolving Advance available to Agent in immediately available funds by 3:00 p.m. on the date requested, and may advance same day funds the obligation to Borrowers as a Swing Loan; provided that notwithstanding anything to the contrary provided for hereinfund such Revolving Advance shall be unconditional, Swing Loan Lender may not make Swing Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that one or more irrespective of the applicable conditions set forth in Section 8.2 occurrence, existence or continuance 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 or Unmatured Event of Default. Amended and regardless Restated Credit Agreement v7 23
(d) If, prior to refinancing a Swing Loan with a Revolving Advance as provided above, an Event of whether Default under Section 10.1(d) or 10.1(e) shall have occurred and be continuing or if for any other reason a Settlement has Revolving Advance cannot be made, then each Lender will, on the date on which the Revolving Advance was to have been requested with respect made or such other date as is designated by Swing Lender, purchase from the Swing Lender an undivided participation interest in all the outstanding Swing Loans in an amount equal to its Pro Rata Share of such Swing LoanLoans. Upon request from Agent (which shall be given by Agent to Lenders immediately following receipt by Agent of notice from Swing Lender), each Lender holding a Revolving Commitment shall be deemed, without further action by any party hereto, will immediately transfer such amount 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (Insperity, 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, Lenders holding Revolving Commitments 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 (each a “Swing LoansLoan”) otherwise available to Borrowers as provided for in this Section 2.4 at any time or Revolving Borrower under the Revolving Credit Facility from time to time after on any Business Day during the date hereof to, but not including, period from the expiration of Initial Closing Date until the Term, Revolving Credit Termination Date 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 repaid may be reborrowed under this clause (i) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or (ii) the Formula Amounta). All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option joint and election several obligations of Swing Loan Lender), repay and 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). 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 futureeach Revolving Borrower.
(b) Upon either (i) any In order to request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 applicable Revolving 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 Loans 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 applicable Revolving 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 of this Agreement 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 (such Lender’s “Swing Loan Exposure”) 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 the applicable Revolving 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 applicable Revolving 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 the applicable Revolving 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 the applicable Revolving 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 holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Revolving Credit Lender holding (i) is deemed to have made a Revolving Commitment 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 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 Lender holding Loan other than those received from a Revolving Commitment shall be obligated in any event Credit Lender 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 2.22e) 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 the Lenders and the Administrative Agent for administrative convenience, the Administrative Agent, the Lenders holding Revolving Commitments and the Swing Loan Lender agree that in order to facilitate the administration of this Agreement, the 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 (x) to any US Borrower by way of Domestic Rate Loans (each, a “US Swing Loan” and, collectively, the “US Swing Loans”) and (y) to any Canadian Borrower by way of US Base Rate Loans or Canadian Prime Rate Loans (each, a “Canadian Swing Loan” and, collectively, the “Canadian Swing Loans” and, together with the US Swing Loans, each, a “Swing Loan” and, collectively, the “Swing Loans”) available to Borrowers in each case, as provided for in this Section 2.4 2.3 at any time or from time to time after the date hereof Closing Date to, but not including, the expiration of the TermRevolving Commitment Termination Date, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, ; provided that (x) the outstanding aggregate principal amount of all US Swing Loans and the Revolving Advances outstanding at any one time outstanding shall not exceed an amount equal that would cause (1) the Aggregate Exposure at such time to exceed the Maximum Credit at such time and (2) the Aggregate US Exposure at such time to exceed the US Borrowing Base at such time, and (y) the outstanding aggregate principal amount of all Canadian Swing Loans outstanding at any time shall not exceed an amount that would cause (1) the Aggregate Exposure at such time to exceed the Maximum Credit at such time and (2) the Aggregate Canadian Exposure at such time to exceed the lesser of (iA) the Maximum Revolving Advance Amount less the Maximum Undrawn Amount of all outstanding Letters of Credit or Canadian Borrowing Base at such time and (iiB) the Formula AmountCanadian Revolving Loan Maximum Amount at such time. All Swing Loans shall be Domestic Base Rate Loans only. The Borrowers may borrow (at the option and election of the Swing Loan Lender), repay and reborrow (at the option and election of the Swing Loan Lender) Swing Loans and the Swing Loan Lender may make Swing Loans as provided in this Section 2.4 2.3 during the period between Settlement Dates. All (i) US Swing Loans shall be evidenced by a secured promissory note (the “US Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a)A-3 and (ii) Canadian Swing Loans shall be evidenced by a secured promissory note (the “Canadian Swing Loan Note”) substantially in the form attached hereto as Exhibit A-4. The 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 to make Swing Loans in the future.
(b) Upon either (ix) any request by Borrowing Agent the Lead Borrower for a Revolving Advance made pursuant to Section 2.2(a) or (iiy) the occurrence of any deemed request by the Borrowers for a Revolving Advance pursuant to the provisions of the last sentence of Section 2.2(a), the 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 to the contrary provided for herein, the Swing Loan Lender may not make Swing Loans if the Swing Loan Lender has been notified by the Administrative Agent or by Required the Requisite Lenders that one or more of the applicable conditions set forth in Section 8.2 of this Agreement 3.2 have not been satisfied or the Revolving Commitments have been terminated for any reason.
(cb) 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 Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Swing Loan Lender, without recourse or warranty, an undivided interest and participation in such Swing Loan in proportion to its Revolving Commitment Percentage. The Swing Loan Lender or the Administrative Agent may, at any time, require the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below2.5(d). From and after the date, if any, on which any Lender holding a Revolving Commitment is required to fund, and funds, its participation in any Swing Loans purchased hereunder, the Administrative Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all payments of principal and interest and all proceeds of Collateral thereafter received by the Administrative Agent in respect of such Swing Loan; provided that no Lender holding a Revolving 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 2.222.20) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Xerium Technologies 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 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 date hereof to, but not includinghereof, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), Swing Loan Lender may electLine Bank may, in its sole discretion, make available from time 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 time until the contrary provided for herein, Swing Loan Lender may not make Swing Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that Termination Date one or more loans (each, a “Swing Line Loan”), provided that after giving effect to such Swing Line Loan: (i) the aggregate principal amount of all outstanding Swing Line Loans does not exceed $7,000,000, and (ii) the sum of the applicable conditions total Aggregate Revolving Credit Exposures does not exceed the Aggregate Revolving Commitment. Until the Termination Date, the Borrower may from time to time borrow, repay and re-borrow under this Section 2.13.
(b) Each Swing Line Loan shall be made pursuant to a notice of borrowing delivered by the Borrower to the Agent in accordance with Section 2.08. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swing Line Loan. The Agent will promptly advise the Swing Line Bank of any such notice received from the Borrower. Unless the Swing Line Bank has received prior written notice from the Required Banks instructing it not to make a Swing Line Loan, the Swing Line Bank shall, notwithstanding the failure of any condition precedent set forth in Section 8.2 4.02, be entitled to fund that Swing Line Loan, and to have such Bank purchase participating interests in accordance with Section 2.13(c). The Swing Line Bank shall make each Swing Line Loan available to the Borrower by means of this Agreement have not been satisfied or a credit to the Revolving Commitments have been terminated for any reasongeneral deposit account of the Borrower with the Swing Line Bank (or, in the case of a Swing Line Loan made to finance the reimbursement of an Facility LC Disbursement as provided in Section 2.14(d), by remittance to the Issuing Bank) by 3:00 p.m., New York time, on the requested date of such Swing Line Loan.
(c) Upon The Swing Line Bank may by written notice given to the making Agent require the Banks to acquire participations on such Business Day in all or a portion of a the Swing Line Loans outstanding. Such notice shall specify the aggregate amount of Swing Line Loans in which the Banks will participate. Promptly upon receipt of such notice, the Agent will give notice thereof to each Bank, specifying in such notice such Bank’s Pro Rata Share of such Swing Line Loan or Swing Line Loans. Each Bank hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Agent, for the account of the Swing Line Bank, such Bank’s Pro Rata Share of such Swing Line Loan or Swing Line Loans. Each Bank acknowledges and agrees that its obligation to acquire participations in Swing Line Loans pursuant to this Section 2.13(c) is absolute and unconditional and shall not be affected by any circumstance, including: (whether before i) any setoff, counterclaim, recoupment, defense or after other right that such Bank may have against the Swing Line Bank, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a any Default or an Event of Default and regardless Default; (iii) any inability of whether a Settlement has been requested with respect the Borrower to such Swing Loan), each Lender holding a Revolving Commitment shall be deemed, without further action by any party hereto, satisfy the conditions precedent to have unconditionally and irrevocably purchased from Swing Loan Lender, without recourse or warranty, an undivided interest and participation borrowing set forth in such Swing Loan in proportion to its Revolving Commitment Percentage. Swing Loan Lender or Agent may, this Agreement at any time, require (iv) the Lenders holding reduction or termination of the Revolving Commitments Commitments, or (v) any other circumstance, happening or event whatsoever, whether or not similar to fund such participations any of the foregoing. Each Bank shall comply with its obligation under this Section 2.13(c) by means wire transfer of a Settlement immediately available funds, in the same manner as provided for in Section 2.6(d) below. From 2.04 with respect to Loans made by such Bank (and after Section 2.04 shall apply, mutatis mutandis, to the date, if any, on which any Lender holding a Revolving Commitment is required to fundpayment obligations of the Bank), and funds, its participation the Agent shall promptly pay to the Swing Line Bank the amounts so received by it from the Bank. The Agent shall notify the Borrower of any participations in any Swing Loans purchased hereunderLine Loan acquired pursuant to this Section, Agent shall promptly distribute to such Lender its Revolving Commitment Percentage of all and thereafter 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 Commitment Line Loan shall be obligated made to the Agent and not to the Swing Line Bank. Any amounts received by the Swing Line Bank from the Borrower (or other party on behalf of the Borrower) in respect of a Swing Line Loan after receipt by the Swing Line Bank of the proceeds of a sale of participations therein shall be promptly remitted to the Agent; any such amounts received by the Agent shall be promptly remitted by the Agent to the Banks that shall have made their payments pursuant to this Swing Line Loan and to the Swing Line Bank, as their interests may appear. The purchase of participations in a Swing Line Loan pursuant to this Section 2.13 shall not relieve the Borrower of any default in the payment thereof.
(d) Notwithstanding anything herein or in any event the other Loan Document to make Revolving Advances in an amount in excess of its Revolving Commitment Amount minus its Participation Commitment the contrary, each Swing Line Loan shall constitute a Variable Rate Loan. The Borrower shall repay all principal (taking into account any reallocations under Section 2.22together with accrued interest) of on each Swing Line Loan no later than 3:00 p.m., New York time on the Maximum Undrawn Amount of all outstanding Letters of Creditearliest of: (i) the date that is five (5) Business Days after the date that such Swing Line Loan is made, (ii) the date that demand is made therefore by the Swing Bank, or (iii) the Termination Date.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hardinge 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 holding Revolving 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 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 date hereof Closing Date to, but not including, the expiration 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 reborrow 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)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 Loans 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 of this Agreement 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 holding a Revolving 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 Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Revolving Lender holding a Revolving Commitment 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 holding a Revolving 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 2.222.22 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. (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, Lenders holding Revolving 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 Wachovia shall from time to time after time, upon the date hereof to, but not including, the expiration 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 exceeding $5,000,000; PROVIDED that, immediately after such Swing Loan is made, the outstanding amount of the Maximum Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Syndicated Loans and Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal to the lesser of (iA) the Maximum Revolving Advance Amount less aggregate amount of the Maximum Undrawn Amount of all outstanding Letters of Credit or Commitments and (iiB) the Formula AmountBorrowing Base. Within the foregoing limits, the Borrower may borrow under this Section 2.01(b), prepay and reborrow under this Section 2.01(b) at any time before the Termination Date. All Swing Loans shall be Domestic made as either Base Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender)or, repay and 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant subject to the provisions of Section 2.2(aclause (ii) below, Transaction Rate Loans.
(ii) Swing Loans may be Transaction Rate Loans, if the Agent shall have determined that such Transaction Rate Loan, including the principal amount thereof, the Interest Period and 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 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 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 Agent, with its rate quote (a "Transaction Rate Quote") via facsimile transmission, (c) the Borrower shall immediately inform Wachovia and the 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 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 Agent in accordance with the procedures set forth herein. The Agent shall notify the Banks of any Transaction Rate Borrowing pursuant hereto.
(iii) At any time on or after the occurrence of an Event of Default, 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 Loan Lender may electLoans in an amount equal to its ratable share (based upon its respective Commitment) of such Swing Loans, and Wachovia shall furnish each Bank with a certificate evidencing such participating interest. On such third Domestic Business Day, each Bank will immediately transfer to Wachovia, in immediately available funds, the amount of its sole discretionparticipation. Whenever, to have at any time after Wachovia has received from any such request or deemed request treated as a request for Bank its participating interest in a Swing Loan, the Agent receives any payment on account thereof, the Agent will distribute to such Bank its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Bank's participating interest was outstanding and may advance same day funds funded); PROVIDED, HOWEVER, that in the event that such payment received by the Agent is required to Borrowers as a Swing Loan; provided that notwithstanding anything be returned, such Bank will return to the contrary provided for hereinAgent any portion thereof previously distributed by the Agent to it. Each Bank's obligation to purchase such participating interests shall be absolute and unconditional and shall not be affected by any circumstance, Swing Loan Lender including, without limitation: (1) any set-off, counterclaim, recoupment, defense or other right which such Bank or any other Person may not make Swing Loans if Swing Loan Lender has been notified by Agent have against Wachovia requesting such purchase or by Required Lenders that one or more of the applicable conditions set forth in Section 8.2 of this Agreement have not been satisfied or the Revolving Commitments have been terminated any other Person for any reason.
reason whatsoever; (c2) Upon the making of a Swing Loan (whether before or after the occurrence or 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 Lender holding a Revolving Commitment shall be deemed, without further action by the Commitments; (3) 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 Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22otherwise) of the Maximum Undrawn Amount Borrower or Guarantor; (4) any breach of all outstanding Letters this Agreement by the Borrower or any other Bank; or (5) any other circumstance, happening or event whatsoever, whether or not similar to any of Creditthe foregoing.
Appears in 1 contract
Sources: Credit Agreement (Amli Residential Properties Trust)
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 Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, upon request of Borrower, the Swing Loan Lender may, at its election and option made in its sole discretion cancelable at any time for any reason whatsoever, agrees to make swing loan advances one or more loans (“Swing Loans”"SWING LOANS") available to Borrowers as provided for in this Section 2.4 at any time or Borrower from time to time after from and including the date hereof to, Closing Date to but not including, excluding the expiration of the TermR/C Termination Date, in an aggregate principal amount not to exceed the Swing Loan Commitment as then in effect. Prior to the R/C Termination Date, Borrower may borrow, repay and reborrow Swing Loans up to but not in excess of the Maximum Swing Loan Advance AmountCommitment in accordance with the terms of this Agreement. The Swing Loan Lender shall not make any Swing Loans on or after the R/C Termination Date. No Swing Loan shall be made if, provided that after giving full effect to the requested Swing Loan, the aggregate outstanding amount of Revolving Loans, PLUS the aggregate principal outstanding amount of Swing Loans and Loans, PLUS the aggregate outstanding L/C Liabilities would exceed the aggregate amount of the Revolving Advances Commitments as in effect 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 Amountsuch time. All Swing Loans shall be Domestic Rate made and maintained only as ABR Loans. The Swing Loan Lender shall not make any Swing Loan after receiving a written notice from Borrower or the Majority Revolving 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, (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 onlyshall be made in minimum amounts of $1.0 million and integral multiples of $100,000 above such amount. Borrowers may borrow Upon the occurrence of a Default, each Revolving Lender shall be deemed to have purchased (at and each Revolving Lender hereby irrevocably agrees to purchase) an irrevocable participation in all outstanding Swing Loans, together with all accrued interest thereon equal to such Lender's R/C Percentage thereof, without any further action by or on behalf of the option and election of Swing Loan Lender), repay and reborrow (at any other Lender, Borrower or any other Person. Upon one Business Day's notice from the option and election of Swing Loan Lender) Swing Loans and , each other Revolving Lender shall deliver to the Swing Loan Lender may an amount equal to its respective participation in such Swing Loan (as determined pursuant to the immediately preceding sentence) in immediately available funds. In order to evidence such participation, each Revolving Lender agrees to enter into a participation agreement at the request of the Swing Loan Lender in form and substance satisfactory to the Swing Loan Lender and the Revolving Lender. If any Revolving Lender fails to make available to the Swing Loans Loan Lender the amount of such Revolving Lender's participation as provided in this Section 2.4 during paragraph, 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). 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 entitled to make recover such amount on demand from such Revolving Lender, together with interest thereon at the Federal Funds Rate until such amount is paid in full in immediately available funds. In the event the Swing Loans Loan Lender receives a payment from any Obligor of any amount in which the future.
Revolving Lenders have purchased participations as provided in this paragraph, the Swing Loan Lender shall promptly distribute to each Revolving Lender its PRO RATA share of such payment. Notwithstanding anything herein to the contrary, each Revolving 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, (b) Upon either (i1) any request by Borrowing Agent setoff, counterclaim, recoupment, defense or other right which such Revolving Lender may now or hereafter have against the Swing Loan Lender, Borrower or any other Person for a Revolving Advance made pursuant to Section 2.2(a) or any reason whatsoever, (ii2) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 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 continuation of a Default or an Event of Default and regardless Default, (3) the occurrence of any Material Adverse Change, (4) any other circumstance, happening or event whatsoever, whether a Settlement has been requested with respect or not similar to such Swing Loan)any of the foregoing, each except that no Revolving Lender holding a Revolving Commitment shall be deemed, without further action by need participate in 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. made by the Swing Loan Lender or Agent may, at any time, require the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) violation of the Maximum Undrawn Amount penultimate sentence of all outstanding Letters the first paragraph of CreditSection 2.01(g).
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, Lenders holding Revolving 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 may in its sole discretion cancelable at any time for any reason whatsoever, make swing loan advances loans in Dollars (“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 Revolving Credit Facility from time to time after on any Business Day during the date hereof to, but not including, period from the expiration of Existing Closing Date until 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 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). 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 Revolving Facility 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 hereinRevolving Facility 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 Revolving Facility Agent not later than 1:00 p.m. (New York City time) on the day of the proposed borrowing. The Revolving Facility Agent shall promptly notify the Swing Loan Lender may not make of the details of the requested Swing Loans 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 Revolving Facility 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 Revolving Facility 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 of this Agreement 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 Revolving Facility 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 Revolving Credit Lender pay to the Revolving Facility 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 Revolving Facility 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 Revolving Facility Agent (except that any such notice or demand received by the Revolving Facility 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 Revolving Facility Agent until the next succeeding Business Day), together with a statement prepared by the Revolving Facility 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 Revolving Facility 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 (g) below, be deemed to have made a Revolving Loan to the Borrower. The Revolving Facility 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 Revolving Facility 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 Credit Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Revolving Credit Lender holding (i) is deemed to have made a Revolving Commitment 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 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 Lender holding Loan other than those received from a Revolving Commitment shall be obligated in any event Credit Lender 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 2.22e) 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 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 date hereof SeventhNinth Amendment Effective Date to, but not including, the expiration 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 reborrow 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 by Borrowers in favor of Swing Loan Lender substantially in the form attached as Exhibit 2.4(a) hereto (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(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 (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 Loans 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 of this Agreement 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.222.22 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, Lenders holding Revolving 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 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 period from the date hereof to, but not including, until the expiration 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) $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 reborrow (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 hereto as Exhibit 2.4(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 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Lender holding is deemed to have made a Revolving Commitment is required Credit Loan pursuant to fund, and funds, its participation in 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 Loan other than those received from a Lender holding a Revolving Commitment 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 2.22E) 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, Lenders holding Revolving 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 on any Business Day during the period from the date hereof toof this Agreement until the Maturity Date, but not including, make loans ("Swing Loans") under the expiration 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 reborrow (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 hereto as Exhibit 2.4(a). 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) 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), 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 Loans 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 immediately available funds by 3:00 p.m. (Houston, Texas time) on the date requested, irrespective 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 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 Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 Swingline Lender agrees to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving 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 loans (each a “Swing LoansLoan”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after until the date hereof to, but not including, the expiration of the Term, Revolver Maturity Date in an aggregate principal amount up not to but not in excess of exceed at any time outstanding the Maximum Swing Loan Advance AmountCommitment; provided, however, Swingline Lender, in its sole discretion, may elect not to make a Swing Loan at any time that the Available Credit is negative or would become negative upon the making of such Swing Loan. Each Swing Loan shall be made and prepaid upon such notice as the Swingline Lender and Borrowers’ Agent shall agree; provided that in the outstanding aggregate principal amount absence of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal a written agreement to the lesser contrary, Swingline Lender must receive each request for a Swing Loan not later than 2:00 PM (Portland time) on the Business Day of borrowing and any prepayment made after 2:00 PM (iPortland time) 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 onlycredited on the next Business Day. Borrowers may borrow (at the option and election of Swing Loan Lender)Further, repay and reborrow (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 without notice from Borrowers’ Agent or any Borrower (A) automatically pursuant to cash management arrangements, if any, made from time to time by Borrowers with Administrative Lender and/or (B) to allow Administrative Lender to pay each Lender its share of fees, interest and other amounts due hereunder to the period between Settlement Datesextent such fees, interest and other amounts are 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 hereto as Exhibit 2.4(a)Swingline 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 shall not create any duty borrow, partially or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make wholly repay outstanding Swing Loans in and reborrow Swing Loans. Borrower shall repay the futureoutstanding principal balance of the Swing Loans, together with all accrued and unpaid interest and related fees on the Revolver Maturity Date. All interest due on the Swing Loans shall be payable to the Swingline Lender. After receipt of payment of principal or interest on the Swing Loans, Administrative Lender will promptly distribute the same to the Swingline Lender at its Applicable Lending Office.
(b) Upon either (i) any request by Borrowing Agent for On the Business Day that a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a)True-Up Event occurs, 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 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 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 the conditions in Section 7.2 exist and without notice or other action by any Borrower, the balance of each Lender’s Revolving Loans shall be increased/decreased and the balance of the Swing Loans decreased/increased by that amount that results in the Swing Loans equaling the Swing Loan Balance Amount. Administrative Lender, by not later than 11:00 AM (Portland time) on such Business Day, shall notify each Lender whose Loans are increasing of the principal amount of such increase, and each such Lender shall, before 2:00 PM (Portland time) on such Business Day, make available to Administrative Lender, in immediately available funds, the amount of such Swing Loan)increase. Administrative Lender shall use such funds to repay the principal amount of the Loans being reduced. If Lenders are prohibited by the Bankruptcy Code or any other Governmental Rule from making the adjustment required by the first sentence of this Section, each Lender holding a Revolving Commitment shall be deemed, without further action by any party hereto, purchase such participation interest in the Loans of the other Lenders as is necessary 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 effect the same result among the Lenders holding Revolving Commitments to fund such participations as the adjustment required by means the first sentence of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Creditthis Section.
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, Lenders holding Revolving Commitments 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 period from the date hereof to, but not including, until the expiration of the Term, Revolving Credit Termination Date 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Revolving Credit Lender holding (i) is deemed to have made a Revolving Commitment 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 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 Lender holding Loan other than those received from a Revolving Commitment shall be obligated in any event Credit Lender 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 2.22e) 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 Agreementhereof, and in order if necessary to minimize meet the transfer of funds between Lenders and Agent for administrative convenienceBorrower’s funding deadlines, Agent, Lenders holding Revolving Commitments and PNC agrees to make Swing Loan Lender agree that in order Loans to facilitate the administration of this Agreement, Swing Loan Lender may, at its election and option made in its sole discretion cancelable Borrower at any time for any reason whatsoeveron or prior to the Maturity Date, make swing loan advances (“Swing Loans”) available not to Borrowers as provided for in this Section 2.4 at any time or from time to time after the date hereof to, but not including, the expiration of the Term, in exceed 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 $40,000,000.00, or (ii) the Formula Amountdifference between the Total Commitment and the sum of the aggregate Revolving Credit Exposures, and the aggregate Competitive Bid Loans. All Except as otherwise provided herein, Swing Loans shall be Domestic Rate constitute Loans onlyfor all purposes hereunder. Borrowers may borrow Notwithstanding the foregoing, the aggregate amount of all Loans (at the option and election of Swing Loan Lender)including, repay and reborrow (at the option and election of Swing Loan Lender) without limitation, all 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 all Competitive Bid Loans) shall be evidenced by a secured promissory note (the “Swing Loan Note”) substantially in the form attached hereto as Exhibit 2.4(a). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable not at any time for any reason whatsoever exceed the difference between the Total Commitment and the making of Swing Loans by LC Exposure. Each request for a Swing Loan Lender from time shall be in an amount at least equal to time shall not create $1,000,000.00 and equal to a multiple of $100,000.00. If necessary to meet the Borrower’s funding deadlines, the Agent may treat any duty or obligation, or establish any course of conduct, pursuant to which Swing Request for 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), Swing Loan Lender may elect, in its sole discretion, to have such request or deemed request treated as a request for a Swing Loan, Loan from PNC and PNC may advance same day funds to Borrowers fund it as a Swing Loan; provided that notwithstanding anything to the contrary provided for herein, . Within two (2) Business Days after each Swing Loan is funded, PNC shall request that each Lender, and each Lender may not make Swing Loans if Swing Loan Lender has been notified by Agent or by Required Lenders that shall, on the third (3rd) Business Day after such request is made, purchase a portion of any one or more Swing Loans in an amount equal to that Lender’s Percentage of such Swing Loans by funding under such Lender’s Revolving Note, such purchase to be made in accordance with the applicable conditions set forth in terms of Section 8.2 of this Agreement have 2.1(b) just as if the Lender were funding directly to the Borrower under its Revolving Note (such that all Lenders other than PNC shall fund only under their respective Revolving Note and not been satisfied or under the Revolving Commitments have been terminated for any reason.
(c) Upon Swing Loan Note). Unless the making of Agent knew when PNC funded a Swing Loan that the Borrower had not satisfied the conditions in this Agreement to obtain a Loan, each Lender’s obligation to purchase an interest in the Swing Loans shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (whether before i) any set-off, counterclaim, recoupment, defense or after other right which such Lender or any other Person may have against PNC or any other Person for any reason whatsoever; (ii) the occurrence or 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 Lender holding a Revolving 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment is required to fund, and funds, its participation Commitment; (iii) any adverse change 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 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 the condition (taking into account any reallocations under Section 2.22financial or otherwise) of the Maximum Undrawn Amount Borrower or any of all outstanding Letters of Credit.its Subsidiaries; (iv) any breach of
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, Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 Loans if Loan 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 3.2 (Conditions Precedent to Each Loan and Letter of this Agreement 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 Lender may demand at any time that each Revolving Credit Lender pay to the occurrence Administrative Agent, for the account 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 Commitment shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from 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 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 Loan in proportion Loans demanded to its Revolving Commitment Percentage. Swing Loan Lender be paid pursuant to such demand, and, notwithstanding whether or Agent may, at any time, require not the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for conditions precedent set forth in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 3.2 (taking into account any reallocations under Section 2.22) 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 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 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 date hereof to, but not including, the 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 AmountAmount and shall be subject to the sublimits in Section 2.1(a). All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow (at the option and election of Swing Loan Lender), repay and 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). 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 Loans 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Mammoth Energy 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, Lenders holding Revolving 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 may in its sole discretion cancelable at any time for any reason whatsoeverdiscretion, make swing loan advances make, in Dollars, loans (“each, together with each "Swing Loans”Loan" as defined in and made under the Original DIP Credit Agreement, a "Swing Loan") otherwise available to Borrowers the Borrower under the Revolving Credit Facility (but only as provided for in this Section 2.4 at any time or requested by the Borrower) from time to time after on any Business Day during the date hereof to, but not including, period from the expiration of Initial Closing Date until 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 a Lender or the Revolving Advances at any one time outstanding shall Swing Loan Lender) not to exceed an amount equal to the lesser of the (i) the Maximum Revolving Advance Amount less Swing Loan Lender's Ratable Portion of the Maximum Undrawn Amount of all outstanding Letters of Available Credit or and (ii) the Formula AmountSwing 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. All 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 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). Swing Loans are not subject to a minimum borrowing amount.
(b) In order to request a Swing Loan, the Borrower shall be Domestic Rate Loans only. Borrowers may borrow telecopy (at or forward by electronic mail or similar means) to the option Administrative Agent a duly completed request in substantially the form of Exhibit D hereto, setting forth the requested amount and election date of such Swing Loan Lender(a "Swing Loan Request"), repay and reborrow to be received by the Administrative Agent not later than 2:00 p.m. (at New York time) on the option and election day of the proposed borrowing. The Administrative Agent shall promptly notify the Swing Loan Lender) Lender of the details of the requested Swing Loans and Loan. Subject to the terms of this Agreement, 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 “Swing Loan Note”) substantially available to the Administrative Agent and, in turn, the form attached hereto as Exhibit 2.4(a). Administrative Agent shall make such amounts available to the Borrower on the date of the relevant 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 Request. The Swing Loan Lender shall thereafter be obligated to not make any Swing Loans Loan in the future.
(b) Upon either (i) any request by Borrowing Agent for a Revolving Advance made pursuant to Section 2.2(a) or (ii) period commencing on the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to first Business Day after it receives written notice from the provisions of Section 2.2(a), 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 Loans if Swing Loan Lender has been notified by 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 of this Agreement 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 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.
(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 2.1 and 3.2 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 or an Event of Default and regardless of whether a Settlement has been requested with respect to such Swing Loan)any Default, each Revolving Credit Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Revolving Credit Lender holding (i) is deemed to have made a Revolving Commitment is required Loan pursuant to fund, and funds, its clause (e) above with respect to any Swing Loan or (ii) purchases an undivided participation in any a Swing Loans purchased hereunderLoan 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 Lender holding Loan other than those received from a Revolving Commitment shall be obligated in any event Credit Lender 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 2.22e) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (f) above.
Appears in 1 contract
Sources: Secured Debtor in Possession Credit Agreement (Friedmans 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 Commitments 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 Agent shall not make any Swing Loan under the Swing Line if, after giving effect thereto, (a) the sum of (i) the aggregate outstanding principal amount of all Revolving Loans, plus, (ii) the aggregate outstanding principal amount of all Swing Loans, plus (iii) the aggregate undrawn face amount of all issued and outstanding Letters of Credit, would exceed the Total Commitment Amount, 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, on the unpaid principal amount of each Swing Loan outstanding from time to time from the date hereof tothereof until paid at a rate equal to 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, but not includingdated the Closing Date, and payable to the order of Agent in the principal amount of the Swing Loan Commitment, or, if less, the 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 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, Borrower shall be Domestic Rate Loans only. Borrowers may entitled under this Section 2.1B to borrow (at the option and election of Swing Loan Lender)funds, repay the same in whole or in part and 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). 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 shall not create during the Commitment Period. On 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 of this Agreement have not been satisfied or the Revolving Commitments have been terminated for any reason.
(c) Upon the making of when 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 2.1B is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, the occurrence and continuance of a an Unmatured Event of 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 Credit Commitment shall have been reduced or terminated. Each Bank shall comply with its obligation under this Section 2.1B by wire transfer of whether a Settlement has been requested immediately available funds, in the same manner as provided in Section 2.2(b) with respect to Revolving Loans to be made by such Swing Loan), each Lender holding a Revolving 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of CreditBank.
Appears in 1 contract
Sources: Credit Agreement (Oglebay Norton Co)
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 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 date hereof Closing Date to, but not including, the expiration 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 reborrow 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 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 Loans 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 of this Agreement 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.222.22 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Perma-Pipe International Holdings, Inc.)
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, Lenders holding Revolving 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, 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 date hereof to, but not including, the expiration of the Term, Revolving A Loan Maturity Date 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 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 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 hereto as Exhibit 2.4(a). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 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 of this Agreement 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 (whether before Line Lender to Administrative Agent that some or after all of the occurrence of a Default or an Event of Default and regardless of whether a Settlement has been requested with respect Swing Loans be converted to such Swing Loan)Revolving A Loans, then, on the next Business Day, Administrative Agent shall notify each Lender holding a of the principal amount of Swing Loans SECOND AMENDED AND RESTATED CREDIT AGREEMENT 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 shall be deemedPercentage thereof. Each Lender shall, without further action by any party heretobefore 9:00 a.m. (Pacific Time) on the next Business Day, make available to have unconditionally and irrevocably purchased from Swing Loan LenderAdministrative Agent, without recourse or warrantyin immediately available funds, an undivided interest and participation in such Swing Loan in proportion to the amount of its Revolving Commitment Percentage. Swing A Loan Lender or Agent may, at any time, require the Lenders holding Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 such principal and interest and all proceeds of Collateral received by Agent in respect amount of such Swing Loan; provided that no Loans.
(d) Upon any payment by a Lender holding pursuant to Section 2.2(b) or (c), such Lender shall be deemed to have made a Revolving Commitment 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) ▇▇▇▇▇▇▇ and Borrower agree that Swing Loans may be obligated in any event made to make Revolving Advances in an amount in excess allow Administrative Agent to pay each Lender its share of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.22) of fees, interest and other amounts due hereunder to the Maximum Undrawn Amount of all outstanding Letters of Creditextent such fees, interest and other amounts are then due and payable.
Appears in 1 contract
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, Lenders holding Revolving Commitments and Swing Loan Lender agree that in order to facilitate the administration of this Agreement, during the Commitment Period, each Swing Line Lender severally 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 date hereof to, but Borrower shall not including, the expiration of the Term, in an aggregate principal amount up to but not in excess of the Maximum request any Swing Loan Advance Amount, provided that the outstanding aggregate principal amount of Swing Loans (and the Revolving Advances at any one time outstanding Swing Line Lenders shall not exceed an amount equal be required to make any Swing Loan in the lesser of event Borrower makes a request therefor) if, 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 plus the Total Reserved Letter of Credit Amount then in effect plus the Permitted Non-Affiliate Loan Reserve would exceed the Total Revolving Loan Commitments then in effect or (ii) the Formula Amount. All Swing Loans shall be Domestic Rate Loans only. Borrowers may borrow Line Exposure would exceed the lesser of (at x) Twenty-Five Million Dollars ($25,000,000) and (y) six percent (6.0%) of the option and election of Swing Total Revolving Loan Lender), repay and 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 Commitments (the “Maximum Swing Line Amount”); and provided further that such obligation of the Swing Line Lenders shall be contingent on no Bank being a Delinquent Bank or an Insolvent/Seized Bank (provided that the Swing Line Lenders may, in their sole discretion, be entitled to waive this condition). Each Swing Loan Note”shall bear interest based on the Base Rate Option, and shall be due and payable (to the extent not refinanced as a Revolving Loan as contemplated by Section 2.07(b) substantially in hereof) on the form attached hereto as Exhibit 2.4(a). Swing Loan Lender’s agreement to make Maturity Date applicable thereto. The Borrower shall not request that more than one (1) Swing Loans under this Agreement is cancelable Loan from each Swing Line Lender be 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) 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), 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 Loans 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) the applicable conditions Swing Line Lender shall give such notice upon the failure of the Borrower to repay a Swing Loan as required by Section 2.07(a) hereof, and such notice shall be deemed to have been automatically given upon the 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 such Swing Loans of each Swing Line Lender in accordance with Section 5.01 hereof (other than the requirement set forth in Section 8.2 5.01(a)(i) hereof). 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 Agreement have 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 hereof 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 Lender holding Bank purchase a Revolving 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving Commitment 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 Lender holding 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 Revolving Possible Default or Event of Default or whether or not the agreements and conditions of Article V hereof 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 obligated made by such Bank.
(d) On the Restatement Effective Date, the Borrower shall execute and deliver to each Swing Line Lender, a Swing Line Note with all blanks appropriately completed in any event conformity herewith. The Swing Line Note issued to make Revolving Advances in an amount in excess each Swing Line Lender shall (i) be executed by the Borrower, (ii) be payable to the order of its Revolving Commitment Amount minus its Participation Commitment (taking into account any reallocations under Section 2.22) such Swing Line Lender and dated as of the Maximum Undrawn Amount Restatement Effective Date, (iii) be in a stated principal amount of all Twelve Million Five Hundred Thousand Dollars ($12,500,000) and payable in the principal amount of the Swing Loans evidenced thereby and (iv) be entitled to the benefits of this Agreement and the 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 corporate purposes, including working capital of the Borrower, and the Borrower shall not use the proceeds of any Swing Loan to repay or refinance any outstanding Letters Swing Loan.
(f) All Swing Loans outstanding under the 2010 Credit Agreement that remain unpaid on the Restatement Effective Date shall be paid in full on the Restatement Effective Date.
(g) All Swing Line Notes issued under the 2010 Credit Agreement shall be deemed replaced as of Creditthe Restatement Effective Date and each Person party to the 2010 Credit Agreement in possession of a Swing Line Note issued thereunder shall promptly after the Restatement Effective Date return such Swing Line Note to the Borrower for cancellation.
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 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 date hereof to, but not including, the 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 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). 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 Loans 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 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 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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, Lenders holding Revolving Commitments 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 turn, the Administrative Agent shall make such amounts available to time after such Primary Revolving Borrower on the date hereof toof the relevant Swing Loan Request. No Swing Lender shall Credit Agreement Affiliated Computer Services, but Inc. make any Swing Loan in 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 conditions precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) shall not includingon 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 expiration conditions precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and 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, by no later than 10:00 a.m. (New York time) on the first Business Day of each week, of the Term, in an aggregate principal amount up to but not in excess of the Maximum Swing Loan Advance Amount, provided that 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 reborrow (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 hereto as Exhibit 2.4(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, 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), 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 Loans 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 of this Agreement 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 Lender holding a Revolving 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 Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) 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 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 holding Revolving 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 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 date hereof Closing Date to, but not including, the expiration 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 reborrow 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)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 Loans 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 of this Agreement 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 holding a Revolving 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 Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Revolving Lender holding a Revolving Commitment 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 holding a Revolving 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 2.222.22 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 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, Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), Swing Loan Lender may elect, in its sole discretion, make, in Dollars, loans (each a "Swing Loan") otherwise available to have the Borrowers under the Dollar 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 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 any Borrower in excess of (i) the Aggregate Available Revolving Credit at such time or (ii) the Available Borrowing Base of such Borrower at such time. Each Swing Loan shall be a Base Rate Loan and must be repaid 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 or deemed request treated as a request for a Swing Loan, a 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 2:00 p.m. (Local 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 Loans if Loan available to the Administrative Agent and, in turn, the Administrative Agent shall make such amounts available on the date of the relevant Swing Loan Request to such Borrower at an account located in the United States. 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 3.2 (Conditions Precedent to Each Loan and Letter of this Agreement 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. (Local 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. CREDIT AGREEMENT SWIFT & COMPANY
(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. (Local 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 (Local Time)), 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. (Local 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 owing such Swing Loans. 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 owing such Swing Loans shall repay such Swing Loans 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 Credit Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Revolving Credit Lender holding (i) is deemed to have made a Revolving Commitment 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 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 Lender holding Loan other than those received from a Revolving Commitment shall be obligated in any event Credit Lender 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 2.22e) of the Maximum Undrawn Amount of all outstanding Letters of Credit.or (f) above. CREDIT AGREEMENT SWIFT & COMPANY
Appears in 1 contract
Sources: Credit Agreement (S&c Resale Co)
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, Lenders holding Revolving 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 date hereof to, but not including, the 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 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). 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) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a), Swing Loan Lender may elect, in its sole discretion, make loans (each a "SWING LOAN") otherwise available to have such the Borrower as part of the Facilities 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 at any time not to exceed $50,000,000; PROVIDED, HOWEVER, that, in no event, shall any Swing Loan be made in excess of the Available 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). Swing Loans shall be Base Rate Loans.
(b) In order to request or deemed request treated as a request for a Swing Loan, and may advance same day funds the Borrower shall telecopy (or, if consented to Borrowers as a Swing Loan; provided that notwithstanding anything by the Administrative Agent, 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) (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 Administrative Agent not later than 3:00 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 Loans if Loan. Subject to the terms of this Agreement, the Swing Loan Lender has been notified shall make a Swing Loan available to the Administrative Agent no later than 4:00 p.m. (New York City time) for any Swing Loan whose Swing Loan Request is received by the Administrative Agent prior to 3:00 p.m. on such date 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 of this Agreement 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, if agreed to by the 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 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 4:00 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 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 all or after part of 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) (EVENTS OF DEFAULT), each Lender holding a Revolving Commitment 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 Lenders holding Revolving Commitments 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 2.6(dBase Rate Loans.
(g) below. From and after the date, if any, date on which any Lender holding (i) is deemed to have made a Revolving Commitment 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 35 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 Loan other than those received from a Lender holding a Revolving Commitment 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 2.22E) of the Maximum Undrawn Amount of all outstanding Letters of Creditor (F) above.
Appears in 1 contract
Sources: Credit Agreement (Washington Group International Inc)
Swing Loans. (a) Subject to On the terms and subject to the conditions set forth contained in this Agreement, and in order Swingline Lender agrees to minimize the transfer of funds between Lenders and Agent for administrative convenience, Agent, Lenders holding Revolving 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 loans (each a “Swing LoansLoan”) available to Borrowers as provided for in this Section 2.4 at any time or from time to time after until the date hereof to, but not including, the expiration of the Term, Maturity Date in an aggregate principal amount up not to but not in excess of exceed at any time outstanding the Maximum Swing Loan Advance AmountCommitment; provided, however, Swingline Lender, in its sole discretion, may elect not to make a Swing Loan at any time that the Available Credit is negative or would become negative upon the making of such Swing Loan. Each Swing Loan shall be made and prepaid upon such notice as the Swingline Lender and Borrowers’ Agent shall agree; provided that in the outstanding aggregate principal amount absence of Swing Loans and the Revolving Advances at any one time outstanding shall not exceed an amount equal a written agreement to the lesser contrary, Swingline Lender must receive each request for a Swing Loan not later than 2:00 PM (Portland time) on the Business Day of borrowing and any prepayment made after 2:00 PM (iPortland time) 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 onlycredited on the next Business Day. Borrowers may borrow (at the option and election of Swing Loan Lender)Further, repay and reborrow (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 without notice from Borrowers’ Agent or any Borrower (A) automatically pursuant to cash management arrangements, if any, made from time to time by Borrowers with Administrative Lender and/or (B) to allow Administrative Lender to pay each Lender its share of fees, interest and other amounts due hereunder to the period between Settlement Datesextent such fees, interest and other amounts are then due and payable. All Swing Loans shall be evidenced by a secured Note payable to the order of the Swingline Lender, and on the Closing Date the promissory note (issued under the “Swing Loan Existing Credit Agreement evidencing swing loans shall be exchanged for a Note”) substantially in . Subject to all the form attached hereto as Exhibit 2.4(a). Swing Loan Lender’s agreement to make Swing Loans under this Agreement is cancelable at any time for any reason whatsoever limitations, terms and the making of Swing Loans by Swing Loan Lender conditions contained herein, Borrowers may from time to time shall not create any duty borrow, partially or obligation, or establish any course of conduct, pursuant to which Swing Loan Lender shall thereafter be obligated to make wholly repay outstanding Swing Loans in and reborrow Swing Loans. Borrower shall repay the futureoutstanding principal balance of the Swing Loans, together with all accrued and unpaid interest and related fees on the Maturity Date. All interest due on the Swing Loans shall be payable to the Swingline Lender. After receipt of payment of principal or interest on the Swing Loans, Administrative Lender will promptly distribute the same to the Swingline Lender at its Applicable Lending Office.
(b) Upon either (i) any request by Borrowing Agent for On the Business Day that a Revolving Advance made pursuant to Section 2.2(a) or (ii) the occurrence of any deemed request by Borrowers for a Revolving Advance pursuant to the provisions of Section 2.2(a)True-Up Event occurs, 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 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 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 the conditions in Section 7.2 exist and without notice or other action by any Borrower, the balance of each Lender’s Revolving Loans shall be increased/decreased and the balance of the Swing Loans decreased/increased by that amount that results in the Swing Loans equaling the Swing Loan Balance Amount. Administrative Lender, by not later than 11:00 AM (Portland time) on such Business Day, shall notify each Lender whose Loans are increasing of the principal amount of such increase, and each such Lender shall, before 2:00 PM (Portland time) on such Business Day, make available to Administrative Lender, in immediately available funds, the amount of such Swing Loan)increase. Administrative Lender shall use such funds to repay the principal amount of the Loans being reduced. If Lenders are prohibited by the Bankruptcy Code or any other Governmental Rule from making the adjustment required by the first sentence of this Section, each Lender holding a Revolving Commitment shall be deemed, without further action by any party hereto, purchase such participation interest in the Loans of the other Lenders as is necessary 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 effect the same result among the Lenders holding Revolving Commitments to fund such participations as the adjustment required by means the first sentence of a Settlement as provided for in Section 2.6(d) below. From and after the date, if any, on which any Lender holding a Revolving 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 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 2.22) of the Maximum Undrawn Amount of all outstanding Letters of Creditthis Section.
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 Lenders holding Revolving 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 date hereof Closing Date to, but not including, the expiration 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 reborrow 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 At the request of Swing Loan Lender, 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 Loans 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 of this Agreement 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 holding a Revolving 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 Revolving Commitments to fund such participations by means of a Settlement as provided for in Section 2.6(d) belowhereof. From and after the date, if any, on which any Revolving Lender holding a Revolving 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 Revolving 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 2.222.22 hereof) of the Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (AutoWeb, Inc.)