Swingline Loans. (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 8 contracts

Samples: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04~~herein, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the ~~Revolving~~ Availability Period ~~denominated~~ (i) in ~~dollars~~ US Dollars in an aggregate principal amount at any time outstanding that will not result in ~~(i) subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ US Dollar Swingline Exposure ~~of any~~ exceeding the US Dollar Swingline ~~Lender exceeding its Revolving Commitment,~~ Sublimit and (ii) in Sterling or Euro in an aggregate principal amount at any time outstanding that will not result in the Sterling/Euro Swingline Exposure exceeding the Sterling/Euro Swingline Sublimit, and that in each case will not result in (x) the sum of the US Dollar Equivalent of the principal amounts of outstanding Swingline Loans exceeding US$75,000,000 or (y) the sum of the aggregate Revolving Credit Exposures and the aggregate Competitive Loan Exposures exceeding the aggregate ~~Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit~~Commitments; provided that ~~the~~ no Swingline ~~Lender~~ Loan shall be ~~required to make a Swingline Loan~~ made to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, ~~the Parent~~ a Borrower shall ~~notify the Administrative Agent and the Swingline Lender~~ give notice of such request ~~(i)~~ by telephone (confirmed by telecopy) (i) in ~~writing) or by facsimile~~ the case of a Swingline Loan denominated in US Dollars, to the Swingline Lender (~~confirmed by telephone~~with a copy to the Applicable Agent), not later than ~~10:00 a.m.~~12:00 noon, New York City time, or(ii) in the case of Swingline Loan denominated in Sterling or Euro (other than a Swingline Loan requested by a Belgian Borrowing Subsidiary), ~~if agreed by~~ to the Swingline ~~Lender~~Lender (with a copy to the Applicable Agent), ~~2:00 p.m. New York City time~~ not later than 1:00 p.m., London time, and (iii) in the case of a Swingline Loan requested by a Belgian Borrowing Subsidiary, to the Swingline Lender (with a copy to the London Agent) not later than 1:00 p.m., Brussels time, in each case on the day of ~~such~~ the proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), ~~the~~ amount and currency of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC DisbursementLoan. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the applicable Borrower by means of a credit to the general deposit ~~accounts~~ account of such Borrower ~~maintained~~ with the Swingline Lender ~~for the Swingline Loan~~ (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(e), by remittance to the ~~applicable~~ Issuing Bank) by (i) 3:00 p.m., New York City time, on the requested date of such Swingline ~~Loan~~Loan in the case of a Swingline Loan denominated in US Dollars, (ii) 4:00 p.m., Local Time, on the requested date of such Swingline Loan in the case of a Swingline Loan denominated in Sterling or Euro (other than a Swingline Loan requested by a Belgian Borrowing Subsidiary) and (iii) 4:00 p.m., Brussels time, on the requested date of such Swingline Loan in the case of a Swingline Loan requested by a Belgian Borrowing Subsidiary. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00 p.m.~~10:00 a.m., New York City time, on any Business Day require the ~~Revolving~~ Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the ~~aggregate amount~~ amounts and currencies of the Swingline ~~Loans in which Revolving Lenders will participate~~Loans. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each ~~Revolving~~ Lender, specifying in such notice ~~the~~ such Lender’s Applicable Percentage of each such Swingline Loan or ~~Swingline~~ Loans. Each ~~Revolving~~ Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of each such Swingline Loan or ~~Swingline~~ Loans. Each ~~Revolving~~ Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each ~~Revolving~~ Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section ~~2.06~~ 2.07 with respect to Loans made by such Lender (and Section ~~2.06~~ 2.07 shall apply, mutatis mutandis, to the payment obligations of the ~~Revolving Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to the Swingline Lender the amounts so received by it from the ~~Revolving~~ Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower Agent of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from ~~the Borrowers~~ any Borrower (or other ~~Person~~ party on behalf of ~~the Borrowers~~any Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the ~~Revolving~~ Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ applicable Borrower of any default in the payment thereof. (d) The ~~Parent~~ Borrower ~~may, at any time and~~ Agent may from time to time, ~~designate as additional Swingline Lenders one or~~ but in no event more ~~Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement~~than once during any fiscal quarter, ~~which shall be in form and substance reasonably satisfactory~~ upon ten Business Days’ prior written notice to the Administrative Agent and the ~~Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated~~ Swingline Lender, ~~and, from~~ increase one Swingline Sublimit and simultaneously decrease the other Swingline Sublimit in amounts that will result in the sum of the US Dollar Swingline Sublimit and the Sterling/Euro Swingline Sublimit remaining unchanged after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof giving effect to such ~~Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice~~ increase and ~~(ii) the fifth Business Day following the date of the delivery thereof~~decrease; provided that no such ~~termination~~ adjustment shall ~~become effective until and unless~~ be made that would result in (i) the US Dollar Swingline Exposure exceeding the US Dollar Swingline Sublimit or (ii) the Sterling/Euro Swingline Exposure exceeding the Sterling/Euro Swingline Sublimit. Any such notice shall set forth the amount of the increase or decrease in each Swingline Sublimit and the date on which such ~~Swingline Lender shall have been reduced~~ adjustment is requested to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loansbecome effective.

Appears in 4 contracts

Samples: Facility Agreement (WABCO Holdings Inc.), Credit Agreement (WABCO Holdings Inc.), Credit Agreement (American Standard Companies Inc)

Swingline Loans. (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the ~~Borrowers~~ Borrower from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers~~ Borrower may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent~~ Borrower shall notify ~~the Administrative Agent and~~ the Swingline Lender of such request (i) by telephone (confirmed in writing) or by email or facsimile (confirmed by telephone), not later than ~~10:00 a.m., New York City time, or, if agreed by the Swingline Lender,~~ 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of ~~such~~ the Borrower maintained with the Swingline Lender because ~~such~~ the Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of ~~such~~ the Borrower’s account to which funds are to be disbursed, which shall comply with Section ~~2.06,~~ 2.06 or (y) in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the Borrower by means of a credit to the general deposit accounts of ~~such~~ the Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. The Swingline Lender shall not be required to fund any Swingline Loan if any Lender is at that time a Defaulting Lender if, after giving effect to Section 2.22(a)(iv), any Defaulting Lender Fronting Exposure remains outstanding, unless the Swingline Lender has entered into arrangements, including the delivery of Cash Collateral, reasonably satisfactory to the Swingline Lender with the Borrower or such Lender to eliminate such Swingline Lender’s Defaulting Lender Fronting Exposure. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00 p.m.~~12:00 noon, New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the ~~Borrowers~~ Borrower (or other Person on behalf of the ~~Borrowers~~Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the ~~Borrowers~~Borrower, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ Borrower of any default in the payment thereof. (d) The ~~Parent~~ Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the ~~Parent~~ Borrower, executed by the ~~Borrowers~~Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The ~~Parent~~ Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 4 contracts

Samples: Credit Agreement (European Wax Center, Inc.), Incremental Assumption and Amendment (European Wax Center, Inc.), Incremental Assumption and Amendment (European Wax Center, Inc.)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04~~herein, the Swingline Lender agrees to make Swingline Loans denominated in (i) US Dollars to any Borrower and (ii) Canadian Dollars to the ~~Borrowers~~ Canadian Borrower, from time to time during the ~~Revolving~~ Availability ~~Period denominated in dollars~~ Period, in an aggregate principal amount at any time outstanding not to exceed US$10,000,000; provided, that ~~will not result in~~ (ix) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall not be required to make a any Swingline Loan to refinance an outstanding Swingline Loan, as the case may be, and (y) after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Obligations shall not exceed the Total Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than US$500,000 or CA$500,000, as applicable, or such lesser amount as may be agreed by the Swingline Lender; provided, that, notwithstanding the foregoing minimum amount, a Swingline Loan may be in an aggregate amount that is (x) equal to the entire unused balance of the aggregate Unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Within the foregoing limits and subject to the terms and conditions set forth herein, ~~the Borrowers~~ Swingline Loans may ~~borrow~~be borrowed, ~~prepay~~ prepaid and ~~reborrow Swingline Loans. (b)~~ reborrowed. To request a Swingline Loan, the ~~Parent~~ Borrower Representative shall notify the ~~Administrative Agent and the~~ Swingline Lender (with a copy to the Administrative Agent) of such request in writing (i) by ~~telephone~~ hand delivery, email or other electronic transmission (~~confirmed in writing)~~ including “.pdf” or ~~by facsimile (confirmed by telephone~~“.tif”)), not later than ~~10:00 a.m., New York City time, or, if agreed by the Swingline Lender,~~ 2:00 p.m. ~~New York City time~~ on the day of ~~such~~ a proposed Swingline Loan. Each notice with respect to a Swingline Loan by the Borrower Representative pursuant to this Section 2.04 shall be delivered to the Administrative Agent in the form of a written Swingline Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower Representative. Each such ~~notice~~ Swingline Loan Notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), ~~the~~ currency and amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC DisbursementLoan. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the applicable Borrower by means of a credit to the ~~general deposit accounts of such Borrower maintained~~ Funding Account or otherwise in accordance with the ~~Swingline Lender for~~ instructions of the ~~Swingline Loan~~ Borrower Representative (orincluding, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(e), by remittance to the applicable Issuing Bank~~) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan~~). (cb) The Swingline Lender ~~may~~ may, by written notice given to the Administrative Agent (by hand delivery, email or other electronic transmission (including “.pdf” or “.tif”)) not later than ~~2:00 p.m., New York City time,~~ 12:00 p.m. on any Business ~~Day~~ Day, require the Revolving Lenders to acquire participations on ~~such~~ the second Business Day following receipt of such notice in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to ~~each~~ the Revolving ~~Lender~~Lenders, specifying in such notice ~~the~~ each Revolving Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section ~~2.06~~ 2.07 with respect to Revolving Loans made by such Revolving Lender (and Section ~~2.06~~ 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this ~~paragraph~~Section 2.04(b)), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower Representative of any ~~participations~~ participation in ~~any~~ a Swingline Loan acquired pursuant to this ~~paragraph~~Section 2.04(b), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from ~~the Borrowers~~ any Borrower (or other Person on behalf of ~~the Borrowers~~any Borrower) in respect of a any Swingline Loan after receipt by ~~the~~ such Swingline Lender of the proceeds of a any sale of participations therein shall be promptly remitted by ~~the~~ such Swingline Lender to the Administrative ~~Agent;~~ Agent and any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving ~~Lenders~~ Lender that ~~shall have~~ has made ~~their~~ its payments pursuant to this ~~paragraph~~ Section 2.04(b) and to the Swingline Lender, as their interests may appear; ~~provided~~ provided, that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to ~~the Borrowers~~such Borrower, if and to the extent such payment is required to be refunded to ~~the Borrowers~~ any Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this ~~paragraph~~ Section 2.04(b) shall not relieve the Borrowers of any default in the payment thereof. (dc) ~~The Parent Borrower may, at~~ If any ~~time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a~~ Revolving Lender ~~of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory~~ fails to make available to the Administrative Agent ~~and~~ for the ~~Parent Borrower, executed~~ account of the Swingline Lender any amount required to be paid by ~~the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i)~~ such Revolving Lender ~~shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein~~ pursuant to the ~~term “Swingline Lender” shall be deemed to include such Revolving Lender~~ foregoing provisions of this Section 2.04 by the time specified in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline LenderSection 2.04(b), with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall ~~have been reduced~~ be entitled to ~~zero. Notwithstanding~~ recover from such Revolving Lender (acting through the ~~effectiveness~~ Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate (or (i) in the case of any ~~such termination~~Swingline Loan denominated in Canadian Dollars, the ~~terminated~~ Canadian Prime Rate or (ii) in the case of any Swingline Loan denominated in any Alternate Currency, the rate selected by the Administrative Agent for interbank advances in the Alternate Currency in which such Swingline Loan is denominated) from time to time in effect and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate of the Swingline Lender ~~shall remain a party hereto and shall continue~~ submitted to ~~have all~~ any Revolving Lender (through the ~~rights of a Swingline Lender under this Agreement~~ Administrative Agent) with respect to ~~Swingline Loans made by it prior to such termination, but~~ any amounts owing under this clause (c) shall ~~not make any additional Swingline Loans~~be conclusive absent manifest error.

Appears in 4 contracts

Samples: Incremental Amendment to Credit Agreement (Knowlton Development Corp Inc), Credit Agreement (Knowlton Development Corp Inc), Credit Agreement (Knowlton Development Parent, Inc.)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22)~~herein, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the ~~Borrowers~~ Borrower from time to time ~~during~~ on and after the Closing Date, and until the earlier of the Initial Revolving ~~Availability Period~~ Credit Maturity Date and the termination of the Initial Revolving Credit Commitment in accordance with the terms hereof, denominated in ~~dollars~~ dollars, in an aggregate principal amount at any time outstanding that will not result in (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure~~ outstanding Swingline Loans of ~~any~~ the Swingline Lender exceeding its ~~Revolving Commitment,~~ Swingline Commitment or (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving ~~Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit;~~ Credit Commitments, provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers~~ Borrower may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent~~ Borrower shall notify the Administrative Agent and the Swingline Lender of such request ~~(i)~~ by telephone (confirmed in writing) or by facsimile or electronic communication, if arrangements for doing so have been approved by the Swingline Lender (confirmed by telephone), not later than ~~10:00 a.m.~~1:00 p.m., New York ~~City~~ time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of ~~such~~ the Borrower maintained with the Swingline Lender because ~~such~~ the Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of ~~such~~ the Borrower’s account to which funds are to be disbursed, which shall comply with Section ~~2.06~~2.07, or (y) in the case of any ~~ABR Revolving Borrowing or~~ Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(e), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the Borrower by means of a credit to the general deposit accounts of ~~such~~ the Borrower maintained with the Swingline Lender ~~for the Swingline Loan~~ (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(e), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00~~ 1:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice ~~the~~ such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section ~~2.06~~ 2.07 with respect to Loans made by such Lender (with references to 1:00 p.m. and 2:00 p.m., New York City time, in such Section being deemed to be references to 3:00 p.m., New York City time) (and Section ~~2.06~~ 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the ~~Borrowers~~ Borrower (or other Person on behalf of the ~~Borrowers~~Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; , provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the ~~Borrowers~~Borrower, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ Borrower of any default in the payment thereof. (d) The ~~Parent~~ Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the ~~Parent~~ Borrower, executed by the ~~Borrowers~~Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The ~~Parent~~ Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth (5th) Business Day following the date of the delivery thereof; , provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 3 contracts

Samples: First Lien Credit Agreement (Waystar Holding Corp.), First Amendment to the First Lien Credit Agreement (Waystar Holding Corp.), First Lien Credit Agreement (Waystar Holding Corp.)

Swingline Loans. (ai) ~~Subject~~ The Administrative Agent, the US Swingline Lender and the Facility A Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing under Facility A on behalf of the Company, the US Swingline Lender may elect to have the terms of this Section 2.05(a)(i) apply to such Borrowing Request by advancing, on behalf of the Facility A Lenders and in the amount so requested, same day funds to the Company on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “Facility A Swingline Loan”), with settlement among them as to the Facility A Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility A Swingline Loan shall be subject to all the terms and conditions ~~set forth herein (including Section 2.22)~~applicable to other ABR Loans funded by the Facility A Lenders, ~~in reliance upon~~ except that all payments thereon shall be payable to the ~~agreements of the other Lenders set forth in this Section 2.04, the~~ US Swingline Lender ~~agrees to make~~ solely for its own account. In addition, no Facility A Swingline ~~Loans to~~ Loan shall be made if, after giving effect thereto: (A) the ~~Borrowers from time to time during the Revolving Availability Period denominated in dollars in an~~ aggregate principal amount ~~at any time~~ of outstanding ~~that will not result in~~ Facility A Swingline Loans would exceed the Facility A Swingline Sublimit; (iB) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ Facility A Revolving Exposure of any ~~Swingline~~ Lender ~~exceeding its Revolving~~ would exceed such Lender’s Facility A Commitment, ; (iiC) the ~~aggregate~~ total Revolving ~~Exposures exceeding~~ Exposure would exceed the lesser of (x) the sum of the aggregate amount of the Commitments and (y) the Aggregate Borrowing Base; or (D) the total Facility A Revolving ~~Commitments or~~ Exposure would exceed the lesser of (~~iii~~x) the aggregate amount of the Facility A Commitments and (y) the US Borrowing Base; subject, in the case of each of clause (A), (C) and (D) above, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.04. (ii) The Administrative Agent, the US Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing under Facility B on behalf of the Company, the US Swingline Lender may elect to have the terms of this Section 2.05(a)(ii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to the Company on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “Facility B US Swingline Loan”), with settlement among them as to the Facility B US Swingline Loans ~~outstanding exceeding~~ to take place on a periodic basis as set forth in Section 2.05(c). Each Facility B US Swingline ~~Sublimit; provided that the Swingline Lender~~ Loan shall be ~~required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and~~ subject to all the terms and conditions ~~set forth herein~~applicable to other ABR Loans funded by the Facility B Lenders, except that all payments thereon shall be payable to the ~~Borrowers may borrow~~US Swingline Lender solely for its own account. In addition, ~~prepay~~ no Facility B US Swingline Loan shall be made if, after giving effect thereto: (A) the aggregate principal amount of outstanding Facility B Swingline Loans would exceed the Facility B Swingline Sublimit; (B) the Facility B Revolving Exposure of any Lender would exceed such Lender’s Facility B Commitment; (C) the total Revolving Exposure would exceed the lesser of (x) the aggregate amount of the Commitments and ~~reborrow Swingline Loans~~(y) the Aggregate Borrowing Base; (D) the total Facility B Revolving Exposure would exceed the lesser of (x) the aggregate amount of the Facility B Commitments and (y) the Aggregate Borrowing Base minus the Facility A Revolving Exposure; or (E) the total Revolving Exposure relating to the Company would exceed the US Borrowing Base; subject, in the case of each of clause (A), (C), (D) and (E) above, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.04. (biii) ~~To request a Swingline Loan~~The European Administrative Agent, the ~~Parent~~ European Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower ~~shall notify~~ Representative requests a Eurocurrency Borrowing on behalf of any European Borrower (or the applicable European Borrower requests such Borrowing), and provided that such Eurocurrency Borrowing request is received by the European Administrative Agent and the European Swingline Lender ~~of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone),~~ not later than 10:00 a.m., ~~New York City~~ London time, orthe European Swingline Lender may elect to have the terms of this Section 2.05(a)(iii) apply to such Borrowing Request by advancing, ~~if agreed~~ on behalf of the Facility B Lenders and in the amount so requested, same day funds to the applicable European Borrower on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “European Swingline Loan”), with settlement among them as to the European Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each European Swingline Loan shall be subject to all the terms and conditions applicable to other Eurocurrency Loans funded by the Facility B Lenders, except that (i) such European Swingline ~~Lender, 2:00 p.m. New York City time on~~ Loan shall accrue interest at a rate determined by reference to the ~~day of such proposed Swingline Loan. Each such notice~~ Overnight LIBO Rate and (ii) all payments thereon shall be ~~irrevocable and shall specify~~ payable to the ~~requested date (which~~ European Swingline Lender solely for its own account. In addition, no European Swingline Loan shall be ~~a Business Day)~~made if, after giving effect thereto: (A) the aggregate principal amount of outstanding Facility B Swingline Loans would exceed the Facility B Swingline Sublimit; (B) the Facility B Revolving Exposure of any Lender would exceed such Lender’s Facility B Commitment; (C) the total Revolving Exposure would exceed the lesser of (x) the aggregate amount of the ~~requested Swingline Loan~~ Commitments and (y) the Aggregate Borrowing Base; (D) the total Facility B Revolving Exposure would exceed the lesser of (x) if the ~~funds are not to be credited to a general deposit account~~ aggregate amount of ~~such Borrower maintained with~~ the ~~Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location~~ Facility B Commitments and ~~number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or~~ (y) in the ~~case of any ABR~~ Aggregate Borrowing Base minus the Facility A Revolving ~~Borrowing or Swingline Loan requested to finance~~ Exposure; or (E) the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit total Facility B Revolving Exposure with respect to the ~~general deposit accounts of such Borrower maintained with~~ European Borrowers would exceed the ~~Swingline Lender for the Swingline Loan (or~~European Sublimit; subject, in the case of ~~a Swingline Loan made to finance the reimbursement~~ each of ~~an LC Disbursement as provided in Section 2.05(f~~clause (A), ~~by remittance to the applicable Issuing Bank~~(C) ~~by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.~~ and (cD) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, ~~to pay~~ to the Administrative Agent’s authority, ~~for the account of the Swingline Lender~~in its sole discretion, ~~such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation~~ to ~~acquire participations in Swingline Loans~~ make Protective Advances pursuant to ~~this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including~~ the ~~occurrence and continuance~~ terms of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof2.04. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 3 contracts

Samples: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)

Swingline Loans. (a) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ The Swingline Lender ~~agrees to make~~ is authorized by the Lenders to, and shall make, Swingline Loans at any time (subject to Section 2.05(b)) to the Borrowers ~~from time~~ up to ~~time during~~ the ~~Revolving Availability Period denominated in dollars in an aggregate principal~~ amount ~~at any time outstanding that will not result in~~ of the sum of (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline ~~Lender shall be required to make~~ Loan Sublimit, upon receipt of a ~~Swingline~~ Committed Loan ~~to refinance an outstanding Swingline Loan. Within~~ Notice from the ~~foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent~~ Lead Borrower ~~shall notify~~ by the Administrative Agent and the Swingline Lender of (which notice, at the Swingline Lender’s discretion, may be submitted prior to 3:00 p.m. on the Business Day on which such ~~request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone~~Swingline Loan is requested), ~~not later than 10:00 a.m., New York City time, or, if agreed~~ plus (ii) any Permitted Overadvances. Swingline Loans shall be Base Rate Loans and shall be subject to periodic settlement with the Lenders under Section 2.16 below. The proceeds of each Swingline Loan made in accordance with this Agreement shall be credited by the Swingline ~~Lender, 2:00 p.m. New York City time on~~ Lender to the ~~day of such proposed~~ Loan Disbursement Account. (b) The Lead Borrower’s request for a Swingline ~~Loan. Each such notice~~ Loan shall be ~~irrevocable and shall specify~~ deemed a representation that the ~~requested date~~ applicable conditions for borrowing under Section 4.02 are satisfied (~~which shall~~ unless such conditions have been waived). If the conditions for borrowing under Section 4.02 cannot in fact be ~~a Business Day)~~fulfilled, ~~the amount of the requested Swingline Loan and~~ (x) if the ~~funds are not to be credited to~~ Lead Borrower shall give immediate notice (a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y“Noncompliance Notice”) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given thereof to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and ~~unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of~~ the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly ~~remit to~~ provide each Lender with a copy of the Noncompliance Notice, and (y) the Required Lenders may direct the Swingline Lender ~~the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph~~to, and ~~thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by~~ the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lenderthereupon shall, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of cease making Swingline Loans ~~hereunder~~(other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 10.01. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 3 contracts

Samples: Credit Agreement (Performance Food Group Co), Credit Agreement (Performance Food Group Co), Credit Agreement (Performance Food Group Co)

Swingline Loans. (a) Subject to the terms and conditions ~~set forth herein~~ hereof, the Swingline Lender may, in its sole discretion (~~including Section 2.22~~subject to subsection 2.5(b)), ~~in reliance upon the agreements~~ make a portion of the ~~other Lenders~~ Revolving Commitments available to the Company by making swingline loans (each such loan, a "Swingline Loan") to the Company on any Business Day during the period from the Restatement Date to the Revolving Termination Date in accordance with the procedures set forth in this Section ~~2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars~~ 2.5 in an aggregate principal amount at any one time outstanding ~~that will~~ not ~~result in~~ to exceed the lesser of (ix) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure~~ lesser of ~~any Swingline Lender exceeding its Revolving Commitment,~~ (ii1) the aggregate available amount of the Revolving ~~Exposures exceeding~~ Commitments and (2) the Borrowing Base and (y) $25,000,000, notwithstanding the fact that such Swingline Loans, when aggregated with the Swingline Lender's outstanding Revolving Loans, may exceed the Swingline Lender's Revolving Percentage of the aggregate amount of the Revolving ~~Commitments or~~ Commitments; provided that at no time shall the sum of the Effective Amount of all Swingline Loans, Revolving Loans and L/C Obligations exceed the lesser of (~~iii~~1) the aggregate amount of ~~Swingline Loans outstanding exceeding Swingline Sublimit~~the Revolving Commitments and (2) the Borrowing Base. Subject to the other terms and conditions hereof, the Company may borrow under this subsection 2.5(a), prepay pursuant to subsection 2.5(d) and reborrow pursuant to this subsection 2.5(a) from time to time; provided that the Swingline Lender shall not be ~~required~~ obligated to make ~~a Swingline Loan to refinance an outstanding~~ any Swingline Loan~~. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans~~. (b) ~~To request a Swingline Loan, the Parent Borrower~~ The Company shall ~~notify~~ provide the Administrative Agent and the Swingline Lender irrevocable written notice (or notice by a telephone call confirmed promptly by facsimile) of ~~such request~~ any Swingline Loan requested hereunder (which notice must be received by the Swingline Lender and the Administrative Agent prior to 12:00 p.m. (Chicago time) on the requested Borrowing Date) specifying (i) ~~by telephone~~ the amount to be borrowed and (~~confirmed in writing~~ii) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested ~~date (~~Borrowing Date, which ~~shall~~ must be a Business Day). Upon receipt of such notice, the Swingline Lender will promptly confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such notice from the Company and, if not, the Swingline Lender will provide the Administrative Agent with a copy thereof. If and only if the Administrative Agent notifies the Swingline Lender on the proposed Borrowing Date that it may make available to the Company the amount of the requested Swingline Loan, then, subject to the terms and conditions hereof, the Swingline Lender may make the amount of the requested Swingline Loan ~~and (x) if~~ available to the ~~funds are not to be credited to a general deposit~~ Company by crediting the account of the Company on the books of BofA with the amount of such ~~Borrower maintained with~~ Swingline Loan. The Administrative Agent will not so notify the Swingline Lender ~~because~~ if the Administrative Agent has knowledge that (A) the limitations set forth in the proviso set forth in the first sentence of subsection 2.5(a) are being violated or would be violated by such ~~Borrower is unable to maintain a general deposit account with the~~ Swingline ~~Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06,~~ Loan or (yB) one or more conditions specified in ~~the case of any ABR Revolving Borrowing or~~ Article V is not then satisfied. Each Swingline Loan ~~requested~~ shall be in an aggregate principal amount equal to ~~finance the reimbursement~~ $500,000 or a higher integral multiple of ~~an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement~~$100,000. The Swingline Lender ~~shall make~~ will promptly notify the Administrative Agent of the amount of each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) ~~The~~ Principal of and accrued interest on each Swingline Loan shall be due and payable (i) on demand made by the Swingline Lender ~~may by~~ at any time upon one Business Day's prior notice to the Company with a copy to the Administrative Agent furnished at or before 10:45 a.m. (Chicago time), and (ii) in any event on the Revolving Termination Date. Interest on Swingline Loans shall be for the sole account of the Swingline Lender (except to the extent that the other Lenders have funded the purchase of participations therein pursuant to subsection 2.5(e)). (d) The Company may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of any Swingline Loan, without incurring any premium or penalty; provided that (i) each such voluntary prepayment shall require prior written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender no later than 1:00 p.m. (Chicago time) on the ~~amounts so received by it from~~ day on which the ~~Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant~~ Company intends to ~~this paragraph~~make a voluntary prepayment, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof.and (dii) ~~The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in~~ each such ~~capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which~~ voluntary prepayment shall be in ~~form and substance reasonably satisfactory~~ an amount equal to ~~the Administrative Agent and the Parent Borrower~~$500,000 or a higher integral multiple of $100,000 (or, ~~executed by the Borrowers~~if less, the ~~Administrative Agent and such designated Swingline Lender, and, from and after the effective date~~ aggregate outstanding principal amount of ~~such agreement, (i) such Revolving Lender shall have~~ all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans ~~hereunder~~then outstanding). (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 3 contracts

Samples: Credit Agreement (Del Monte Foods Co), Credit Agreement (Del Monte Foods Co), Credit Agreement (Del Monte Foods Co)

Swingline Loans. ~~(a)~~ Subject to ~~the terms~~ and ~~conditions set forth herein (including Section 2.22), in reliance~~ upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the~~ Swingline Lender ~~of such request (i) by telephone (confirmed~~ in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not its individual capacity agrees to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower maymake, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to each Revolving Borrower, which Swingline Loans: (i) shall be denominated in Dollars or Euros, in each case, as elected by the respective Revolving Borrower; (ii) shall be made and maintained as Base Rate Loans or, in the case of Euro Denominated Swingline Loans, Euro Rate Loans; (iii) may be repaid and reborrowed in accordance with the provisions hereof; (iv) shall not exceed in aggregate principal amount at any time outstanding (for this purpose, using the Dollar Equivalent of all Euro Denominated Swingline Loans) in respect of all Revolving Borrowers, when added to the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding (for this purpose, using the Dollar Equivalent of each Primary Alternate Currency Revolving Loan then outstanding and exclusive of Revolving Loans and Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, such Swingline Loans) and (II) the aggregate amount of all Letter of Credit Obligations (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, such Swingline Loans) at such time, ~~designate as additional~~ an amount equal to the Total Revolving Loan Commitment at such time; (v) shall not exceed in aggregate principal amount at any time outstanding (for this purpose, using the Dollar Equivalent of all Euro Denominated Swingline ~~Lenders one or more~~ Loans) in respect of all Revolving ~~Lenders that agree~~ Borrowers, the Maximum Swingline Amount. Notwithstanding anything to ~~serve~~ the contrary contained in ~~such capacity as provided below. The acceptance by a Revolving~~ this Section 2.01(g), the Swingline Lender ~~of an appointment as~~ will not make a Swingline ~~Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent~~ Loan after it has received written notice from any Borrower~~, executed by the Borrowers~~, the Administrative Agent ~~and~~ or the Required Lenders stating that a Default or an Event of Default exists until such ~~designated Swingline Lender, and, from and after~~ time as the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have ~~been reduced to zero. Notwithstanding~~ received written notice of (x) rescission of all such notices from the ~~effectiveness~~ party or parties originally delivering such notice or notices or (y) the cure or waiver of ~~any~~ such ~~termination,~~ Default or Event of Default in accordance with the ~~terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights~~ requirements of ~~a Swingline Lender under~~ this ~~Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~Agreement.

Appears in 3 contracts

Samples: Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc), Credit Agreement (Silgan Holdings Inc)

Swingline Loans. In order to reduce the frequency of transfers of funds from Lenders to Agent for making Revolving Credit Loans and for so long as no Default or Event of Default has occurred and is continuing, Agent shall be permitted (abut not required) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees~~ to make ~~Swingline~~ Revolving Credit Loans to ~~the~~ Borrowers ~~from time~~ upon request by Borrower Representative (such Revolving Credit Loans to ~~time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding~~ be designated as "Swingline Loans"); provided that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding ~~exceeding Swingline Sublimit~~at any time will not (i) exceed $22,500,000; ~~provided that~~ (ii) when added to the ~~Swingline Lender shall be required~~ principal amount of Agent's other Revolving Credit Loans then outstanding plus Agent's Revolving Loan Percentage of the LC Exposure, exceed Agent's Revolving Credit Commitment; or (iii) when added to ~~make a Swingline Loan to refinance an~~ the principal amount of all other Revolving Credit Loans then outstanding ~~Swingline Loan~~plus the LC Exposure (other than the Cash Collateralized LC Exposure), exceed the Borrowing Base. Within the foregoing ~~limits and subject to the terms and conditions set forth herein~~limits, ~~the~~ Borrowers may borrow, ~~prepay~~ repay and reborrow Swingline Loans. . All Swingline Loans shall be treated as Revolving Credit Loans for purposes of this Agreement, except that (a) all Swingline Loans shall be Base Rate Portions and (b) ~~To request~~ notwithstanding anything herein to the contrary (other than as set forth in the next succeeding sentence), all principal and interest paid with respect to Swingline Loans shall be for the sole account of Agent in its capacity as the lender of Swingline Loans. Notwithstanding the foregoing, not more than two Business Days after (1) Lenders receive notice from Agent that a Swingline ~~Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender~~ Loan has been advanced in respect of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day a drawing under a Letter of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, Credit or (y2) in any other circumstance, demand is made by Agent after the ~~case of any ABR Revolving Borrowing or Swingline Loan requested to finance~~ occurrence and during the ~~reimbursement~~ continuance of an ~~LC Disbursement as provided in Section 2.05(f)~~Event of Default, ~~the identity of the Issuing Bank that made such LC Disbursement. The Swingline~~ each Lender shall ~~make~~ irrevocably and unconditionally purchase and receive from Agent, without recourse or warranty from Agent, an undivided interest and participation in each Swingline Loan ~~available~~ to the extent of such Xxxxxx's Revolving Loan Percentage thereof, by paying to Agent, in same day funds, an amount equal to such ~~Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline~~ Xxxxxx's Revolving Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date Percentage of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 3 contracts

Samples: Loan and Security Agreement (Century Aluminum Co), Loan and Security Agreement (Century Aluminum Co), Loan and Security Agreement (Century Aluminum Co)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22)~~herein, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ each Swingline Lender agrees to make Swingline Loans to the ~~Borrowers~~ Borrower from time to time during the ~~Revolving~~ Availability ~~Period denominated in dollars~~ Period, in an aggregate principal amount at any time outstanding that will not result in (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure~~ aggregate principal amount of ~~any~~ outstanding Swingline ~~Lender~~ Loans of all Swingline Lenders exceeding ~~its Revolving Commitment,~~ $50,000,000 or (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving ~~Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit;~~ Commitments, provided that ~~the~~ no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan, and by requesting a Swingline Loan the Borrower shall be deemed to be representing to each Swingline Lender that the terms set forth in clauses (a)(i) and (a)(ii) above are true and correct on the date of the requested Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers~~ Borrower may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent~~ Borrower shall notify the Administrative Agent ~~and the Swingline Lender~~ of such request ~~(i)~~ by telephone (confirmed ~~in writing) or~~ by ~~facsimile (confirmed by telephone~~telecopy), not later than ~~10:00 a.m.~~2:00 p.m., New York City time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of such proposed Swingline Loan and which Swingline Lender is to make the requested Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day~~), the~~ ) and amount of the requested Swingline ~~Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with~~ Loan. The Administrative Agent will promptly advise the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ~~ABR Revolving Borrowing or Swingline Loan requested to finance~~ such notice received from the ~~reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement~~Borrower. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the Borrower by means of a credit to the general deposit ~~accounts~~ account of ~~such~~ the Borrower maintained with ~~the~~ such Swingline Lender ~~for the Swingline Loan~~ (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(e), by remittance to the ~~applicable~~ Issuing Bank or, to the extent that the Lenders have made payments pursuant to Section 2.05(e) to reimburse the Issuing Bank, to such Lenders and the Issuing Bank as their interests may appear) by ~~3:00~~ 4:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) ~~The~~ Each Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00~~ 12:30 p.m., New York City time, on any Business Day require the ~~Revolving~~ Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans made by it and then outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which ~~Revolving~~ Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each ~~Revolving~~ Lender, specifying in such notice ~~the~~ such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each ~~Revolving~~ Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the applicable Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each ~~Revolving~~ Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this ~~paragraph~~ clause is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each ~~Revolving~~ Lender shall comply with its obligation under this ~~paragraph~~ clause by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the ~~Revolving Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to the Swingline Lender that has made the applicable demand the amounts so received by it from the ~~Revolving~~ Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower of any participations in any Swingline Loan acquired pursuant to this ~~paragraph~~clause, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the applicable Swingline Lender. Any amounts received by ~~the~~ such Swingline Lender from the ~~Borrowers~~ Borrower (or other ~~Person~~ party on behalf of the ~~Borrowers~~Borrower) in respect of a Swingline Loan after receipt by ~~the~~ such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the ~~Revolving~~ Lenders that shall have made their payments pursuant to this ~~paragraph~~ clause and to ~~the~~ such Swingline Lender, as their interests may appear; , provided that any such payment so remitted shall be repaid to ~~the~~ such Swingline Lender or to the Administrative Agent, as ~~the case may be, and thereafter to the Borrowers~~applicable, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this ~~paragraph~~ clause shall not relieve the ~~Borrowers~~ Borrower of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 3 contracts

Samples: Second Amendment and Joinder Agreement (Seagate Technology PLC), Credit Agreement (Seagate Technology PLC), Credit Agreement (Seagate Technology PLC)

Swingline Loans. (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the ~~Borrowers~~ Borrower from time to time during the Revolving Availability Period denominated in ~~dollars~~ Dollars, in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the ~~Applicable Fronting Exposure~~ outstanding Swingline Loans of ~~any~~ the Swingline Lender exceeding its ~~Revolving Commitment,~~ Swingline Commitment or (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving ~~Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit~~Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Any such Swingline Loans will reduce availability under the Revolving Commitments on a dollar-for-dollar basis. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers~~ Borrower may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent~~ Borrower shall notify the Administrative Agent and the Swingline Lender of such request ~~(i)~~ by telephone (confirmed in writing~~) or by facsimile (confirmed by telephone~~), not later than ~~10:00 a.m.~~2:00 p.m., ~~New York City time, or, if agreed by the Swingline Lender, 2:00 p.m.~~ New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of ~~such~~ the Borrower maintained with the Swingline Lender because ~~such~~ the Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of ~~such~~ the Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the Borrower by means of a credit to the general deposit ~~accounts~~ account of ~~such Borrower~~ the Borrower’s account maintained with the Swingline Lender ~~for the Swingline Loan~~ or to such other account as may be specified in accordance with clause (x) above (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00~~ 1:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice ~~the~~ such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of ~~immediately available funds~~Same Day Funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (with references to 12:00 noon, New York City time, in such Section being deemed to be references to 3:00 p.m., New York City time) (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the ~~Borrowers~~ Borrower (or other Person on behalf of the ~~Borrowers~~Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the ~~Borrowers~~Borrower, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ Borrower of any default in the payment thereof. (d) The ~~Parent~~ Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the ~~Parent~~ Borrower, executed by the ~~Borrowers~~Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The ~~Parent~~ Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans. (f) If at any time that Swingline Loans are outstanding a Revolving Lender becomes a Defaulting Lender, the Swingline Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Revolving Lenders in accordance with Section 2.22(a)(iv). If such reallocation cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice and request by the Administrative Agent prepay such unreallocated portion of the Swingline Loans. Notwithstanding the foregoing, the Swingline Lender shall be under no obligation to make any Swingline Loan at any time that any Revolving Lender is a Defaulting Lender unless it is reasonably satisfied that the related exposure will be 100% covered by the Revolving Commitments of the Non-Defaulting Lenders and participating interests in any such newly made Swingline Loan shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.22(a)(iv).

Appears in 2 contracts

Samples: Credit Agreement (Blue Buffalo Pet Products, Inc.), Credit Agreement (Blue Buffalo Pet Products, Inc.)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22)~~herein, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ each Swingline Lender agrees to make Swingline Loans to the ~~Borrowers~~ Borrower denominated in Dollars or Designated Foreign Currencies from time to time during the ~~Revolving~~ Availability ~~Period denominated in dollars~~ Period, in an aggregate ~~principal~~ amount at any time outstanding that will not result in (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ Swingline Exposure ~~of any Swingline Lender~~ exceeding ~~its Revolving Commitment~~US$1,500,000,000, (ii) the aggregate ~~Revolving Exposures~~ Dollar Equivalent amount of outstanding Swingline Loans made by any Swingline Lender exceeding ~~the aggregate Revolving Commitments or~~ such Lender’s Swingline Commitment, (iii) the aggregate Dollar Equivalent Amount of such Swingline Lender’s outstanding Revolving Loans and Swingline Loans (including participations in outstanding Swingline Loans) exceeding the amount of such Swingline ~~Loans outstanding~~ Lender’s Revolving Commitment, or (iv) the aggregate Revolving Exposure exceeding ~~Swingline Sublimit~~the aggregate amount of the Revolving Commitments; provided that ~~the~~ no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Each Swingline Loan denominated in Dollars will be an ABR Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers~~ Borrower may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent~~ Borrower shall notify the Administrative Agent ~~and the Swingline Lender~~ of such request in writing (i) or, in the case of a US Swingline Loan, by telephone (confirmed ~~in writing~~by telecopy)) ~~or by facsimile (confirmed by telephone),~~ not later than ~~10:00 a.m.~~(i) 12:00 noon, ~~New York City time~~Local Time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of any such proposed US Swingline ~~Loan~~Loans and (ii) 10:00 a.m., Local Time, on the day of any such proposed European Swingline Loans or UK Swingline Loans. Each such notice shall be irrevocable and shall specify the requested borrowing date (which shall be a Business Day), the currency and the aggregate principal amount of the requested Swingline Loan ~~and~~ (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section ~~2.06, or (y) in the case~~ 2.02(c)). The Administrative Agent will promptly notify each Swingline Lender of any ~~ABR Revolving Borrowing or~~ such notice received from the Borrower and of such Swingline ~~Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity~~ Lender’s share of the ~~Issuing Bank that made such LC Disbursement~~requested Swingline Borrowing. ~~The~~ Each Swingline Lender shall make its share of each requested Swingline Loan available to ~~such~~ the Borrower (pro rata in accordance with the relative amounts of the Swingline Commitments of the Swingline Lenders) in the requested currency by means of a ~~credit to the general deposit accounts~~ transfer of ~~such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f),~~ funds by ~~remittance to the applicable Issuing Bank) by 3:00~~ 2:00 p.m., ~~New York City time~~Local Time, on the requested date of such Swingline Loan, (i) to the Applicable Funding Account, in the case of US Swingline Loans, and (ii) to the account of the Administrative Agent most recently designated by it for such purpose, in the case of Multicurrency Swingline Loans. The Administrative Agent will make such Multicurrency Swingline Loans available to the Borrower by promptly transferring the amounts so received pursuant to clause (ii) of the immediately preceding sentence, in like funds, to the Applicable Funding Account. (c) ~~The~~ Any Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00 p.m.~~10:00 a.m., ~~New York City time~~Local Time, on any Business Day require the ~~Revolving~~ Lenders to acquire and fund participations on such Business Day in all or a portion of the Swingline Loans of such Swingline Lender outstanding. Such notice shall specify the aggregate amount and currency of the Swingline Loans in which ~~Revolving~~ the Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each ~~Revolving~~ Lender, specifying in such notice ~~the~~ each Lender’s share, based on such Lender’s Applicable ~~Percentage~~ Percentage, of such ~~Swingline Loan or~~ Swingline Loans. Each ~~Revolving~~ Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative ~~Agent~~Agent (in Dollars or the relevant Designated Foreign Currency, as the case may be), for the account of the applicable Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or ~~Swingline~~ Loans. Each ~~Revolving~~ Lender acknowledges and agrees that its obligation to acquire and fund participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each ~~Revolving~~ Lender shall comply with its ~~obligation~~ obligations under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section ~~2.06~~ 2.05 with respect to Loans made by such Lender (and Section ~~2.06~~ 2.05, including with respect to interest payable in respect of unfunded amounts, shall apply, mutatis mutandis, to the payment obligations of the ~~Revolving Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to the applicable Swingline Lender the amounts so received by it from the ~~Revolving~~ Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the applicable Swingline Lender. Any amounts received by ~~the~~ a Swingline Lender from the ~~Borrowers~~ Borrower (or other ~~Person~~ party on behalf of the ~~Borrowers~~Borrower) in respect of a Swingline Loan after receipt by ~~the~~ such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the ~~Revolving~~ Lenders that shall have made their payments pursuant to this paragraph and to the applicable Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the applicable Swingline Lender or to the Administrative Agent, as the case may be~~, and thereafter to the Borrowers~~, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ Borrower of any default in the payment thereof. Notwithstanding the foregoing, a Lender shall not have any obligation to acquire a participation in a Swingline Loan pursuant to this paragraph if an Event of Default shall have occurred and be continuing at the time such Swingline Loan was made and such Lender shall have notified the applicable Swingline Lender in writing, at least one Business Day prior to the time such Swingline Loan was made, that such Event of Default has occurred and that such Lender will not acquire participations in Swingline Loans made while such Event of Default is continuing. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory Notwithstanding anything to the ~~Administrative Agent and~~ contrary in this Agreement, if any Swingline Exposure exists at the ~~Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline~~ time a Lender becomes a Defaulting Lender~~, and, from and after the effective date of such agreement~~, (i) ~~such Revolving Lender~~ the Borrower shall ~~have all~~ make arrangements satisfactory to the ~~rights and obligations~~ Swingline Lenders eliminating the risk of a the Swingline ~~Lender under this Agreement and~~ Lenders with respect to each Defaulting Lender’s participation therein or (ii) ~~references herein to~~ in the ~~term “Swingline Lender”~~ event no such satisfactory arrangements are made, the Borrower shall be ~~deemed~~ required to ~~include such Revolving Lender in its capacity as a lender of~~ prepay the outstanding Swingline Loans ~~hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof~~ in an amount equal to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of the Defaulting Lender or, if agreed by each Swingline Lender, cash collateralize Swingline Loans in the amount of the Swingline Exposure of the Defaulting Lender on terms satisfactory to each Swingline Lender (in which case any such cash collateral held by a Swingline Lender will be applied as a payment of Swingline Loans immediately prior to any exercise by such Swingline Lender ~~shall have been reduced~~ of its rights to ~~zero~~require the funding of participations in such Loans pursuant to Section 2.04(c)). ~~Notwithstanding~~ In the ~~effectiveness of any such termination,~~ event the ~~terminated Swingline Lender shall remain a party hereto and shall continue to have all~~ Borrower prepays or cash collateralizes the ~~rights of a Swingline Lender under this Agreement with respect to~~ Swingline Loans ~~made by~~ in the amount of the Swingline Exposure of the Defaulting Lender pursuant to clause (ii) above, then the Lenders other than the Defaulting Lender will be required to fund participations in the remaining Swingline Loans under Section 2.04(c) in accordance with their Applicable Percentages determined, in accordance with the definition of such term herein, without taking into account the Commitment of such Defaulting Lender (it ~~prior to~~ being understood that such ~~termination, but~~ funding of participations shall not ~~make any additional Swingline Loans~~result in such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment).

Appears in 2 contracts

Samples: Credit Agreement, Credit Agreement (Hewlett Packard Enterprise Co)

Swingline Loans. (a) Subject to the terms and conditions ~~set forth herein~~ hereof, the Swingline Lender may, in its sole discretion (~~including Section 2.22~~subject to subsection 2.5(b)), ~~in reliance upon the agreements~~ make a portion of the ~~other Lenders~~ Revolving Commitments available to the Company by making swingline loans (each such loan, a "Swingline Loan") to the Company on any Business Day during the period from the Closing Date to the Revolving Termination Date in accordance with the procedures set forth in this Section ~~2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars~~ 2.5 in an aggregate principal amount at any one time outstanding ~~that will~~ not ~~result in~~ to exceed the lesser of (ix) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure~~ lesser of ~~any Swingline Lender exceeding its Revolving Commitment,~~ (ii1) the aggregate available amount of the Revolving ~~Exposures exceeding~~ Commitments and (2) the Borrowing Base and (y) $25,000,000, notwithstanding the fact that such Swingline Loans, when aggregated with the Swingline Lender's outstanding Revolving Loans, may exceed the Swingline Lender's Revolving Percentage of the aggregate amount of the Revolving ~~Commitments or~~ Commitments; provided that at no time shall the sum of the Effective Amount of all Swingline Loans, Revolving Loans and L/C Obligations exceed the lesser of (~~iii~~1) the aggregate amount of ~~Swingline Loans outstanding exceeding Swingline Sublimit~~the Revolving Commitments and (2) the Borrowing Base. Subject to the other terms and conditions hereof, the Company may borrow under this subsection 2.5(a), prepay pursuant to subsection 2.5(d) and reborrow pursuant to this subsection 2.5(a) from time to time; provided that the Swingline Lender shall not be ~~required~~ obligated to make ~~a Swingline Loan to refinance an outstanding~~ any Swingline Loan~~. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans~~. (b) ~~To request a Swingline Loan, the Parent Borrower~~ The Company shall ~~notify~~ provide the Administrative Agent and the Swingline Lender irrevocable written notice (or notice by a telephone call confirmed promptly by facsimile) of ~~such request~~ any Swingline Loan requested hereunder (which notice must be received by the Swingline Lender and the Administrative Agent prior to 12:00 p.m. (Chicago time) on the requested Borrowing Date) specifying (i) ~~by telephone~~ the amount to be borrowed and (~~confirmed in writing~~ii) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested ~~date (~~Borrowing Date, which ~~shall~~ must be a Business Day). Upon receipt of such notice, the Swingline Lender will promptly confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such notice from the Company and, if not, the Swingline Lender will provide the Administrative Agent with a copy thereof. If and only if the Administrative Agent notifies the Swingline Lender on the proposed Borrowing Date that it may make available to the Company the amount of the requested Swingline Loan, then, subject to the terms and conditions hereof, the Swingline Lender may make the amount of the requested Swingline Loan ~~and (x) if~~ available to the ~~funds are not to be credited to a general deposit~~ Company by crediting the account of the Company on the books of BofA with the amount of such ~~Borrower maintained with~~ Swingline Loan. The Administrative Agent will not so notify the Swingline Lender ~~because~~ if the Administrative Agent has knowledge that (A) the limitations set forth in the proviso set forth in the first sentence of subsection 2.5(a) are being violated or would be violated by such ~~Borrower is unable to maintain a general deposit account with the~~ Swingline ~~Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06,~~ Loan or (yB) one or more conditions specified in ~~the case of any ABR Revolving Borrowing or~~ Article V is not then satisfied. Each Swingline Loan ~~requested~~ shall be in an aggregate principal amount equal to ~~finance the reimbursement~~ $500,000 or a higher integral multiple of ~~an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement~~$100,000. The Swingline Lender ~~shall make~~ will promptly notify the Administrative Agent of the amount of each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) ~~The~~ Principal of and accrued interest on each Swingline Loan shall be due and payable (i) on demand made by the Swingline Lender ~~may by~~ at any time upon one Business Day's prior notice to the Company with a copy to the Administrative Agent furnished at or before 10:45 a.m. (Chicago time), and (ii) in any event on the Revolving Termination Date. Interest on Swingline Loans shall be for the sole account of the Swingline Lender (except to the extent that the other Lenders have funded the purchase of participations therein pursuant to subsection 2.5(e)). (d) The Company may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of any Swingline Loan, without incurring any premium or penalty; provided that (i) each such voluntary prepayment shall require prior written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender no later than 1:00 p.m. (Chicago time) on the ~~amounts so received by it from~~ day on which the ~~Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant~~ Company intends to ~~this paragraph~~make a voluntary prepayment, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof.and (dii) ~~The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in~~ each such ~~capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which~~ voluntary prepayment shall be in ~~form and substance reasonably satisfactory~~ an amount equal to ~~the Administrative Agent and the Parent Borrower~~$500,000 or a higher integral multiple of $100,000 (or, ~~executed by the Borrowers~~if less, the ~~Administrative Agent and such designated Swingline Lender, and, from and after the effective date~~ aggregate outstanding principal amount of ~~such agreement, (i) such Revolving Lender shall have~~ all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans ~~hereunder~~then outstanding). (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 2 contracts

Samples: Credit Agreement (Del Monte Foods Co), Credit Agreement (Del Monte Foods Co)

Swingline Loans. (a) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ The Swingline Lender ~~agrees~~ is authorized by the Revolving Credit Lenders, but is not obligated, to make Swingline Loans at any time (subject to SECTION 2.05(b)) to the Borrowers ~~from time~~ up to ~~time during~~ the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of ~~Swingline Loans outstanding exceeding Swingline Sublimit; provided that~~ the sum of the Swingline ~~Lender shall be required to make~~ Loan Ceiling, plus any Permitted Overadvances, in each case upon a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent notice of Borrowing from Lead Borrower ~~shall notify~~ received by the Administrative Agent and the Swingline Lender ~~of such request~~ (~~i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone)~~which notice, ~~not later than 10:00 a.m., New York City time, or, if agreed by~~ at the Swingline Lender’s discretion, ~~2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall~~ may be ~~irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not~~ submitted prior to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 1:00 p.m., ~~New York City~~ Boston time, on the ~~requested date of~~ Business Day on which such Swingline ~~Loan~~Loan is requested). Swingline Loans shall be Prime Rate Loans and shall be subject to periodic settlement with the Revolving Credit Lenders under SECTION 2.20 below. (cb) ~~The~~ Swingline Loans may be made by Swingline Lender ~~may by written~~ only (i) for Permitted Overadvances or (ii) for administrative convenience, at the Lead Borrower’s request therefor which shall be deemed a representation that the applicable conditions for borrowing under SECTION 4.02 are satisfied. If the conditions for borrowing under SECTION 4.02 cannot in fact be fulfilled, (x) the Lead Borrower shall give immediate notice ~~given~~ (a “Noncompliance Notice”) thereof to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and ~~unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of~~ the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly ~~remit to~~ provide each Revolving Credit Lender with a copy of the Noncompliance Notice, and (y) the Required Revolving Credit Lenders may direct the Swingline Lender ~~the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph~~to, and ~~thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by~~ the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lenderthereupon shall, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of cease making Swingline Loans ~~hereunder~~(other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with SECTION 9. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 2 contracts

Samples: Credit Agreement (Endeavor Acquisition Corp.), Credit Agreement (American Apparel, Inc)

Swingline Loans. (ai) ~~Subject~~ The Administrative Agent, the Swingline Lender and the Facility A Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing under Facility A on behalf of a US Borrower, the Swingline Lender may elect to have the terms of this Section 2.05(a)(i) apply to such Borrowing Request by advancing, on behalf of the Facility A Lenders and in the amount so requested, same day funds to the applicable Borrower on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “Facility A Swingline Loan”), with settlement among them as to the Facility A Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility A Swingline Loan shall be subject to all the terms and conditions ~~set forth herein (including Section 2.22)~~applicable to other ABR Loans funded by the Facility A Lenders, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04,~~ except that all payments thereon shall be payable to the Swingline Lender ~~agrees to make~~ solely for its own account. In addition, no Facility A Swingline ~~Loans to~~ Loan shall be made if, after giving effect thereto: (A) the ~~Borrowers from time to time during the Revolving Availability Period denominated in dollars in an~~ aggregate principal amount ~~at any time~~ of outstanding ~~that will not result in~~ Facility A Swingline Loans would exceed the Facility A Swingline Sublimit; (iB) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ Facility A Credit Exposure of any ~~Swingline~~ Lender ~~exceeding its Revolving~~ would exceed such Xxxxxx’s Facility A Commitment, ; (iiC) the ~~aggregate~~ total Revolving ~~Exposures exceeding~~ Credit Exposure would exceed the lesser of (x) the sum of the aggregate amount of the Revolving Commitments or and (~~iii~~y) the Aggregate Borrowing Base; or (D) the total Facility A Credit Exposure would exceed the lesser of (x) the aggregate amount of ~~Swingline Loans outstanding exceeding Swingline Sublimit; provided that~~ the ~~Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits~~ Facility A Commitments and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the ~~case of any ABR Revolving~~ Aggregate Facility A Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (orBase; subject, in the case of ~~a Swingline Loan made to finance the reimbursement~~ each of ~~an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank~~clauses (C) ~~by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.~~ and (cD) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, ~~to pay~~ to the Administrative Agent’s authority, ~~for~~ in its sole discretion, to make Protective Advances pursuant to the ~~account~~ terms of Section 2.04. (ii) The Administrative Agent, the Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing under Facility B on behalf of a Canadian Borrower, the Swingline Lender may elect to have the terms of this Section 2.05(a)(ii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to such Canadian Borrower on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “Facility B Swingline ~~Lender~~Loan”), ~~such Lender’s Applicable Percentage of such~~ with settlement among them as to the Facility B Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility B Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be ~~made without any offset~~subject to all the terms and conditions applicable to other ABR Loans funded by the Facility B Lenders, ~~abatement, withholding or reduction whatsoever. Each Revolving Lender~~ except that all payments thereon shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit be payable to the Swingline Lender ~~the amounts so received by it from the Revolving Lenders~~solely for its own account. ~~The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph~~In addition, ~~and thereafter payments in respect of such~~ no Facility B Swingline Loan shall be made to if, after giving effect thereto: (A) the ~~Administrative Agent and not to~~ aggregate principal amount of outstanding Facility B Swingline Loans would exceed the Facility B Swingline ~~Lender. Any amounts received by~~ Sublimit; (B) the ~~Swingline~~ Facility B Credit Exposure of any Lender ~~from~~ would exceed such Xxxxxx’s Facility B Commitment; (C) the ~~Borrowers~~ total Revolving Credit Exposure would exceed the lesser of (~~or other Person on behalf~~ x) the aggregate amount of the ~~Borrowers~~Revolving Commitments and (y) ~~in respect~~ the Aggregate Borrowing Base; or (D) the total Facility B Credit Exposure would exceed the lesser of ~~a Swingline Loan after receipt by~~ (x) the ~~Swingline Lender~~ aggregate amount of the ~~proceeds~~ Facility B Commitments and (y) the Aggregate Borrowing Base minus the Facility A Credit Exposure; subject, in the case of ~~a sale~~ each of ~~participations therein shall be promptly remitted by the Swingline Lender~~ clauses (C) and (D) above, to the Administrative Agent~~; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent~~ ’s authority, in its sole discretion, to make Protective Advances pursuant to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase terms of ~~participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof~~Section 2.04. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 2 contracts

Samples: Credit Agreement (ODP Corp), Second Amendment (ODP Corp)

Swingline Loans. (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to ~~Section 9.04(b)(ii)~~0, the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent Borrower~~ Borrowers shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(g), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(g), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The ~~Parent Borrower~~ Borrowers may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the ~~Parent Borrower~~Borrowers, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The ~~Parent Borrower~~ Borrowers may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 2 contracts

Samples: Credit Agreement (Endeavor Group Holdings, Inc.), Credit Agreement (Endeavor Group Holdings, Inc.)

Swingline Loans. (a) ~~Subject~~ In order to reduce the ~~terms~~ frequency of transfers of funds from Lenders to Agent for making Revolving Credit Loans and ~~conditions set forth herein~~ for so long as no Default or Event of Default exists, Agent shall be permitted (~~including Section 2.22~~but not required) to make Revolving Credit Loans to Co-Borrowers upon request by Borrower, on its own behalf and on behalf of each other Co-Borrower (such Revolving Credit Loans to be designated as “Swingline Loans”), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding provided that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding ~~exceeding Swingline Sublimit~~at any time will not (i) exceed Five Million Dollars ($5,000,000); ~~provided that~~ (ii) when added to the ~~Swingline Lender shall be required~~ principal amount of Agent’s other Revolving Credit Loans then outstanding plus Agent’s Revolving Loan Percentage of the LC Amount, exceed Agent’s Revolving Credit Commitment; or (iii) when added to ~~make a Swingline Loan to refinance an~~ the principal amount of all other Revolving Credit Loans then outstanding ~~Swingline Loan~~plus the LC Amount, exceed the Borrowing Base. Within the foregoing ~~limits and subject to the terms and conditions set forth herein~~limits, ~~the~~ Co-Borrowers may borrow, ~~prepay~~ repay and reborrow Swingline Loans. All Swingline Loans shall be treated as Revolving Credit Loans for purposes of this Agreement, except that (a) all Swingline Loans shall be included within the Base Rate Revolving Portion and (b) notwithstanding anything herein to the contrary (other than as set forth in the next succeeding sentence), all principal and interest paid with respect to Swingline Loans shall be for the sole account of Agent in its capacity as the lender of Swingline Loans. Notwithstanding the foregoing, not more than 2 Business Days after (1) Lenders receive notice from Agent that a Swingline Loan has been advanced in respect of a drawing under a Letter of Credit or LC Guaranty or (2) in any other circumstance, demand is made by Agent during the continuance of an Event of Default, each Lender shall irrevocably and unconditionally purchase and receive from Agent, without recourse or warranty from Agent, an undivided interest and participation in each Swingline Loan to the extent of such Lender’s Revolving Loan Percentage thereof (and to the extent such Swingline Loan has not been refinanced with Revolving Loans pursuant to subsection 1.1.4(b)), by paying to Agent, in same day funds, an amount equal to such Lender’s Revolving Loan Percentage of such Swingline Loan. (b) ~~To request a Swingline Loan~~As frequently as determined by Agent, ~~the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone),~~ but not ~~later~~ less frequently than ~~10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the~~ one day ~~of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date~~ per each week (which day shall be a Business Day), ~~the amount~~ Agent shall notify each Lender of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans outstanding as of the end of the previous day and the amount of Revolving Loans required to be made by each Lender to refinance such outstanding Swingline Loans (which shall be in ~~which Revolving Lenders will participate. Promptly upon receipt~~ the amount of ~~such notice, the Administrative Agent will give notice thereof to~~ each ~~Revolving Lender, specifying in such notice the~~ Lender’s ~~Applicable~~ Revolving Loan Percentage of such ~~Swingline Loan or~~ outstanding Swingline Loans). ~~Each Revolving Lender hereby absolutely and unconditionally agrees, upon~~ Upon its receipt of ~~notice as provided above~~a request from Agent under the first sentence of this subsection 1.1.4(b), ~~to pay to the Administrative Agent, for the account~~ each Lender (including Bank of ~~the Swingline Lender, such Lender’s Applicable Percentage of such Swingline~~ America) shall make a Revolving Loan ~~or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and~~ (which shall not be ~~affected by any circumstance whatsoever, including the occurrence and continuance of~~ made as a ~~Default or any reduction or termination~~ Swingline Loan) in an amount equal to its Revolving Loan Percentage of the ~~Revolving Commitments~~aggregate principal amount of Swingline Loans to be refinanced, and ~~that each~~ make the proceeds of such ~~payment shall be made without any offset~~Revolving Loans available to Agent, ~~abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of~~ in immediately available funds, in at the ~~same manner as provided in Section 2.06 with respect to Loans made by~~ main office of Agent not later than 12:00 noon (Chicago time) on the date such ~~Lender (and Section 2.06 shall apply, mutatis mutandis,~~ notice was received. Notwithstanding anything to the ~~payment obligations of the~~ contrary, a Lender shall not be obligated to make any Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of Loan or purchase any ~~participations~~ participation in any Swingline Loan ~~acquired~~ under this Section unless (A) Agent believed in good faith that all conditions to making the subject Revolving Loan were satisfied at the time the related Swingline Loan was made, or (B) such Lender has actual knowledge, by receipt of the statements furnished to it pursuant to ~~this paragraph~~Section 8.1.3 or otherwise, that any such condition had not been satisfied and ~~thereafter payments~~ failed to notify Agent in ~~respect of~~ a writing received by Agent prior to the time it made such Swingline Loan that Agent was not authorized to make a Swingline Loan until such condition has been satisfied. The proceeds of Revolving Loans made pursuant to the preceding sentence shall be ~~made~~ delivered to ~~the Administrative~~ Agent (and not to ~~the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers~~any Co-Borrower) ~~in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender~~ and applied to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional outstanding Swingline Loans.

Appears in 2 contracts

Samples: Loan and Security Agreement (Pw Eagle Inc), Loan and Security Agreement (Pw Eagle Inc)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22)~~herein, the Swingline Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section ~~2.04~~2.05, ~~the Swingline Lender agrees~~ to make loans (each such loan, a “Swingline ~~Loans~~ Loan”) to the Borrowers from time to time on any Business Day during the ~~Revolving~~ Availability Period ~~denominated in dollars~~ in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided, however, that ~~will not result in~~ after giving effect to any Swingline Loan, (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure of any Swingline Lender exceeding its~~ Total Outstandings shall not exceed the Maximum Revolving ~~Commitment,~~ Credit and (ii) the aggregate ~~Revolving Exposures exceeding~~ Outstanding Amount of the ~~aggregate Revolving Commitments or (iii)~~ Loans of any Lender at such time, plus such Lender’s Applicable Percentage of the ~~aggregate amount~~ Outstanding Amount of all L/C Obligations at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans ~~outstanding exceeding Swingline Sublimit; provided~~ at such time shall not exceed such Lender’s Commitment, and provided, further, that the ~~Swingline Lender~~ Borrowers shall ~~be required to make a~~ not use the proceeds of any Swingline Loan to refinance an any outstanding Swingline Loan. Within the foregoing ~~limits~~ limits, and subject to the other terms and conditions ~~set forth herein~~hereof, the Borrowers may ~~borrow~~borrow under this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05. Each Swingline ~~Loans. (b) To request~~ Loan shall be a Base Rate Loan. Immediately upon the making of a Swingline Loan, ~~the Parent Borrower~~ each Lender shall ~~notify the Administrative Agent~~ be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such ~~request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline~~ Lender~~, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day),~~ ’s Applicable Percentage times the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 2 contracts

Samples: Asset Based Revolving Credit Agreement (Alpha Metallurgical Resources, Inc.), Asset Based Revolving Credit Agreement (Contura Energy, Inc.)

Appears in 2 contracts

Samples: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)

Swingline Loans. (a) ~~Subject~~ The Administrative Agent, the Swingline Lender and the Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the Revolving Lenders and in the amount requested, same day funds to the Borrowers, on the applicable Borrowing date to the Funding Account(s) (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05(a) is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Swingline Loan shall be subject to all the terms and conditions applicable to other ABR Loans funded by the Revolving Lenders, except that all payments thereon shall be payable to the Swingline Lender solely for its own account. In addition, the Borrowers hereby authorize the Swingline Lender to, and the Swingline Lender shall, subject to the terms and conditions set forth herein (~~including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to~~ but without any further written notice from the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephonerequired), not later than ~~10:00 a.m.~~2:00 p.m., ~~New York City~~ Chicago time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on ~~the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a~~ each Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make ~~each Swingline Loan~~ available to ~~such Borrower~~ the Borrowers by means of a credit to the ~~general deposit accounts of such Borrower maintained with~~ Funding Account, the ~~Swingline Lender for the Swingline Loan (or, in the case~~ proceeds of a Swingline Loan ~~made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance~~ to the ~~applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given~~ extent necessary to ~~the Administrative Agent not later than 2:00 p.m., New York City time,~~ pay items to be drawn on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the cash management account of the ~~Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees~~ Borrowers that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner day (as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it determined based on notice from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.Administrative

Appears in 2 contracts

Samples: Credit Agreement (Kaiser Aluminum Corp), Credit Agreement (Kaiser Aluminum Corp)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22)~~herein, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ each Swingline Lender agrees to make Swingline Loans to the ~~Borrowers~~ Borrower denominated in Dollars or Designated Foreign Currencies from time to time during the ~~Revolving~~ Availability ~~Period denominated in dollars~~ Period, in an aggregate ~~principal~~ amount at any time outstanding that will not result in (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ Swingline Exposure ~~of any Swingline Lender~~ exceeding ~~its Revolving Commitment~~US$1,500,000,000, (ii) the aggregate ~~Revolving Exposures~~ Dollar Equivalent amount of outstanding Swingline Loans made by any Swingline Lender exceeding ~~the aggregate Revolving Commitments or~~ such Lender’s Swingline Commitment, (iii) the aggregate Dollar Equivalent Amount of such Swingline Lender’s outstanding Revolving Loans and Swingline Loans (including participations in outstanding Swingline Loans) exceeding the amount of such Swingline ~~Loans outstanding~~ Lender’s Revolving Commitment, or (iv) the aggregate Revolving Exposure exceeding ~~Swingline Sublimit~~the aggregate amount of the Revolving Commitments; provided that ~~the~~ no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Each Swingline Loan denominated in Dollars will be an ABR Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers~~ Borrower may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent~~ Borrower shall notify the Administrative Agent ~~and the Swingline Lender~~ of such request in writing (i) or, in the case of a US Swingline Loan, by telephone (confirmed ~~in writing~~by telecopy)) ~~or by facsimile (confirmed by telephone),~~ not later than ~~10:00 a.m.~~(i) 12:00 noon, ~~New York City time~~Local Time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of any such proposed US Swingline ~~Loan~~Loans and (ii) 10:00 a.m., Local Time, on the day of any such proposed European Swingline Loans or UK Swingline Loans. Each such notice shall be irrevocable and shall specify the requested borrowing date (which shall be a Business Day), the currency and the aggregate principal amount of the requested Swingline Loan ~~and~~ (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section ~~2.06, or (y) in the case~~ 2.02(c)). The Administrative Agent will promptly notify each Swingline Lender of any ~~ABR Revolving Borrowing or~~ such notice received from the Borrower and of such Swingline ~~Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity~~ Lender’s share of the ~~Issuing Bank that made such LC Disbursement~~requested Swingline Borrowing. ~~The~~ Each Swingline Lender shall make its share of each requested Swingline Loan available to ~~such~~ the Borrower (pro rata in accordance with the relative amounts of the Swingline Commitments of the Swingline Lenders) in the requested currency by means of a ~~credit to the general deposit accounts~~ transfer of ~~such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f),~~ funds by ~~remittance to the applicable Issuing Bank) by 3:00~~ 2:00 p.m., ~~New York City time~~Local Time, on the requested date of such Swingline Loan, (i) to the Applicable Funding Account, in the case of US Swingline Loans, and (ii) to the account of the Administrative Agent most recently designated by it for such purpose, in the case of Multicurrency Swingline Loans. The Administrative Agent will make such Multicurrency Swingline Loans available to the Borrower by promptly transferring the amounts so received pursuant to clause (ii) of the immediately preceding sentence, in like funds, to the Applicable Funding Account. (c) ~~The~~ Any Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00 p.m.~~10:00 a.m., ~~New York City time~~Local Time, on any Business Day require the ~~Revolving~~ Lenders to acquire and fund participations on such Business Day in all or a portion of the Swingline Loans of such Swingline Lender outstanding. Such notice shall specify the aggregate amount and currency of the Swingline Loans in which ~~Revolving~~ the Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each ~~Revolving~~ Lender, specifying in such notice ~~the~~ each Lender’s share, based on such Lender’s Applicable ~~Percentage~~ Percentage, of such ~~Swingline Loan or~~ Swingline Loans. Each ~~Revolving~~ Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative ~~Agent~~Agent (in Dollars or the relevant Designated Foreign Currency, as the case may be), for the account of the applicable Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or ~~Swingline~~ Loans. Each ~~Revolving~~ Lender acknowledges and agrees that its obligation to acquire and fund participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each ~~Revolving~~ Lender shall comply with its ~~obligation~~ obligations under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section ~~2.06~~ 2.05 with respect to Loans made by such Lender (and Section ~~2.06~~ 2.05, including with respect to interest payable in respect of unfunded amounts, shall apply, mutatis mutandis, to the payment obligations of the ~~Revolving Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to the applicable Swingline Lender the amounts so received by it from the ~~Revolving~~ Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower of any participations in any Swingline Loan acquired pursuant to this ~~paragraph,~~ paragraph and thereafter ~~payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any~~ any amounts received by the ~~Swingline Lender~~ Administrative Agent from the ~~Borrowers~~ Borrower (or other ~~Person~~ party on behalf of the ~~Borrowers~~Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the ~~Revolving~~ Lenders that shall have made their payments pursuant to this paragraph and to the applicable Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the ~~Swingline Lender or the~~ Administrative ~~Agent, as the case may be, and thereafter to the Borrowers,~~ Agent if and to the extent such payment is required to be refunded to the ~~Borrowers~~ Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ Borrower of any default in the payment thereof. Notwithstanding the foregoing, a Lender shall not have any obligation to acquire a participation in a Swingline Loan pursuant to this paragraph if an Event of Default shall have occurred and be continuing at the time such Swingline Loan was made and such Lender shall have notified the applicable Swingline Lender in writing, at least one Business Day prior to the time such Swingline Loan was made, that such Event of Default has occurred and that such Lender will not acquire participations in Swingline Loans made while such Event of Default is continuing. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory Notwithstanding anything to the ~~Administrative Agent and~~ contrary in this Agreement, if any Swingline Exposure exists at the ~~Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline~~ time a Lender becomes a Defaulting Lender~~, and, from and after the effective date of such agreement~~, (i) ~~such Revolving Lender~~ the Borrower shall ~~have all~~ make arrangements satisfactory to the ~~rights and obligations~~ Swingline Lenders eliminating the risk of a the Swingline ~~Lender under this Agreement and~~ Lenders with respect to each Defaulting Lender’s participation therein or (ii) ~~references herein~~ in the event no such satisfactory arrangements are made, the Borrower shall be required to prepay the outstanding Swingline Loans in an amount equal to the ~~term “~~Swingline Exposure of the Defaulting Lender or, if agreed by each Swingline Lender~~” shall be deemed to include such Revolving Lender in its capacity as a lender of~~ , cash collateralize Swingline Loans ~~hereunder.~~ in the amount of the Swingline Exposure of the Defaulting Lender on terms satisfactory to each Swingline Lender (~~e) The Parent Borrower may terminate~~ in which case any such cash collateral held by the ~~appointment~~ Administrative Agent for the account of any Swingline Lender will be applied as a “payment of Swingline ~~Lender” hereunder~~ Loans immediately prior to any exercise by ~~providing a written notice thereof to~~ such Swingline ~~Lender, with a copy~~ Lender of its rights to require the ~~Administrative Agent~~funding of participations in such Loans pursuant to Section 2.04(c)). ~~Any such termination shall become effective upon~~ In the ~~earlier~~ event the Borrower prepays or cash collateralizes the Swingline Loans in the amount of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of ~~such Swingline~~ the Defaulting Lender ~~shall have been reduced~~ pursuant to ~~zero. Notwithstanding~~ clause (ii) above, then the ~~effectiveness of any such termination,~~ Lenders other than the ~~terminated Swingline~~ Defaulting Lender ~~shall remain a party hereto and shall continue~~ will be required to ~~have all~~ fund participations in the ~~rights of a Swingline Lender under this Agreement with respect to~~ remaining Swingline Loans ~~made by~~ under Section 2.04(c) in accordance with their Applicable Percentages determined, in accordance with the definition of such term herein, without taking into account the Commitment of such Defaulting Lender (it ~~prior to~~ being understood that such ~~termination, but~~ funding of participations shall not ~~make any additional Swingline Loans~~result in such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment).

Appears in 2 contracts

Samples: Five Year Credit Agreement (Hp Inc), Credit Agreement (Hp Inc)

Swingline Loans. ~~(a)~~ Subject to ~~the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements~~ each of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, ~~the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the~~ Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Revolving Loan, on behalf of Revolving Lenders and in the amount requested, available to Borrowers on the applicable Funding Date in the manner set forth in subsection 2.1C. Each Revolving Loan made solely by Administrative Agent pursuant to this subsection 2.1D is referred to in this Agreement as a "SWINGLINE LOAN" and such Revolving Loans are referred to in this Agreement collectively as "SWINGLINE LOANS". Each Swingline Loan ~~available~~ shall be subject to ~~such Borrower~~ all of the terms and conditions applicable to other Revolving Loans funded by ~~means~~ Revolving Lenders (including, without limitation, the conditions set forth in Section 4), except that all payments thereon shall be payable to Administrative Agent solely for its own account (other than as expressly set forth in the Inter-Lender Agreement). All Swingline Loans shall be secured by the Liens under the Collateral Documents and shall constitute Revolving Loans for all purposes hereunder and under each other Credit Document. At any time upon the occurrence and during the continuance of an Event of Default, Administrative Agent may request settlement of any Swingline Loans (a ~~credit to~~ "SETTLEMENT") with the ~~general deposit accounts~~ Revolving Lenders by notifying the Revolving Lenders of such ~~Borrower maintained with the Swingline Lender for the Swingline Loan~~ requested Settlement by telecopy or telephone no later than 12:00 Noon (~~or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank~~Chicago time) ~~by 3:00 p.m., New York City time,~~ on the ~~requested~~ date of such ~~Swingline Loan.~~ requested Settlement (~~c) The Swingline Lender may by written notice given to~~ the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans"SETTLEMENT DATE"). Each Revolving Lender ~~hereby absolutely and unconditionally agrees, upon receipt~~ (excluding Administrative Agent in all events) agrees to transfer in immediately available funds the entire amount of ~~notice as provided above,~~ such Revolving Lender's Pro Rata Share of the outstanding principal balance of the Swingline Loan with respect to ~~pay~~ which a Settlement has been requested to ~~the~~ Administrative Agent, ~~for the~~ at such account of Administrative Agent as Administrative Agent may designate, no later than 2:00 p.m. (Chicago time) on the ~~Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans~~Settlement Date. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment The foregoing obligations of the Revolving Lenders ~~pursuant~~ in respect of Settlements shall be unconditional (it being understood for the avoidance of doubt that Settlements may occur during the existence of an Event of Default or Potential Event of Default and regardless of whether the applicable conditions set forth in Section 4 have been satisfied). Such amounts that are transferred by the Revolving Lenders to ~~this paragraph), and the~~ Administrative Agent shall ~~promptly remit to~~ be applied against the outstanding principal balance of the applicable Swingline ~~Lender the amounts so received by it from the~~ Loan and shall constitute Revolving Loans of such Revolving Lenders, respectively. ~~The Administrative Agent shall notify the Borrowers of~~ If any ~~participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of~~ such ~~Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers)~~ amount in respect of a Swingline Loan ~~after receipt~~ is not transferred to Administrative Agent by any Revolving Lender on the ~~Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the~~ Settlement Date applicable thereto, then Administrative Agent shall be ~~promptly remitted by the Administrative Agent~~ unconditionally entitled to ~~the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any~~ recover such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and amount on demand from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender ~~shall have all~~ together with interest thereon at the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof rate applicable to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline LoansLoan hereunder.

Appears in 2 contracts

Samples: Credit Agreement (Danielson Holding Corp), Credit Agreement (Covanta Energy Corp)

Swingline Loans. (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent Borrower~~ Borrowers shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(g), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(g), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The ~~Parent Borrower~~ Borrowers may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the ~~Parent Borrower~~Borrowers, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The ~~Parent Borrower~~ Borrowers may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 2 contracts

Samples: Credit Agreement (Endeavor Group Holdings, Inc.), Revolving Credit Agreement (Endeavor Group Holdings, Inc.)

Swingline Loans. (ai) ~~Subject~~ The Administrative Agent, the US Swingline Lender and the Facility A Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing under Facility A on behalf of the Company, the US Swingline Lender may elect to have the terms of this Section 2.05(a)(i) apply to such Borrowing Request by advancing, on behalf of the Facility A Lenders and in the amount so requested, same day funds to the Company on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “Facility A Swingline Loan”), with settlement among them as to the Facility A Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility A Swingline Loan shall be subject to all the terms and conditions ~~set forth herein (including Section 2.22)~~applicable to other ABR Loans funded by the Facility A Lenders, ~~in reliance upon~~ except that all payments thereon shall be payable to the ~~agreements of the other Lenders set forth in this Section 2.04, the~~ US Swingline Lender ~~agrees to make~~ solely for its own account. In addition, no Facility A Swingline ~~Loans to~~ Loan shall be made if, after giving effect thereto: (A) the ~~Borrowers from time to time during the Revolving Availability Period denominated in dollars in an~~ aggregate principal amount ~~at any time~~ of outstanding ~~that will not result in~~ Facility A Swingline Loans would exceed the Facility A Swingline Sublimit; (iB) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ Facility A Revolving Exposure of any ~~Swingline~~ Lender ~~exceeding its Revolving~~ would exceed such Lender’s Facility A Commitment, ; (iiC) the ~~aggregate~~ total Revolving ~~Exposures exceeding~~ Exposure would exceed the lesser of (x) the sum of the aggregate amount of the Commitments and (y) the Aggregate Borrowing Base; or (D) the total Facility A Revolving ~~Commitments or~~ Exposure would exceed the lesser of (~~iii~~x) the aggregate amount of the Facility A Commitments and (y) the US Borrowing Base; subject, in the case of each of clause (A), (C) and (D) above, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.04. (ii) The Administrative Agent, the US Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing under Facility B on behalf of the Company, the US Swingline Lender may elect to have the terms of this Section 2.05(a)(ii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to the Company on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “Facility B US Swingline Loan”), with settlement among them as to the Facility B US Swingline Loans ~~outstanding exceeding~~ to take place on a periodic basis as set forth in Section 2.05(c). Each Facility B US Swingline ~~Sublimit; provided that the Swingline Lender~~ Loan shall be ~~required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and~~ subject to all the terms and conditions ~~set forth herein~~applicable to other ABR Loans funded by the Facility B Lenders, except that all payments thereon shall be payable to the ~~Borrowers may borrow~~US Swingline Lender solely for its own account. In addition, ~~prepay~~ no Facility B US Swingline Loan shall be made if, after giving effect thereto: (A) the aggregate principal amount of outstanding Facility B Swingline Loans would exceed the Facility B Swingline Sublimit; (B) the Facility B Revolving Exposure of any Lender would exceed such Lender’s Facility B Commitment; (C) the total Revolving Exposure would exceed the lesser of (x) the aggregate amount of the Commitments and ~~reborrow Swingline Loans~~(y) the Aggregate Borrowing Base; or (D) the total Facility B Revolving Exposure would exceed the lesser of (x) the aggregate amount of the Facility B Commitments and (y) the Aggregate Borrowing Base minus the total Revolving Exposure; subject, in the case of each of clause (A), (C) and (D) above, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.04. (biii) ~~To request a Swingline Loan~~The European Administrative Agent, the ~~Parent~~ European Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower ~~shall notify~~ Representative requests a Eurocurrency Borrowing on behalf of any European Borrower (or the applicable European Borrower requests such Borrowing), and provided that such Eurocurrency Borrowing request is received by the European Administrative Agent and the European Swingline Lender ~~of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone),~~ not later than 10:00 a.m., ~~New York City~~ London time, orthe European Swingline Lender may elect to have the terms of this Section 2.05(a)(iii) apply to such Borrowing Request by advancing, ~~if agreed~~ on behalf of the Facility B Lenders and in the amount so requested, same day funds to the applicable European Borrower on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “European Swingline Loan”), with settlement among them as to the European Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each European Swingline Loan shall be subject to all the terms and conditions applicable to other Eurocurrency Loans funded by the Facility B Lenders, except that (i) such European Swingline ~~Lender, 2:00 p.m. New York City time on~~ Loan shall accrue interest at a rate determined by reference to the ~~day of such proposed Swingline Loan. Each such notice~~ Overnight LIBO Rate and (ii) all payments thereon shall be ~~irrevocable and shall specify~~ payable to the ~~requested date (which~~ European Swingline Lender solely for its own account. In addition, no European Swingline Loan shall be ~~a Business Day)~~made if, after giving effect thereto: (A) the aggregate principal amount of outstanding Facility B Swingline Loans would exceed the Facility B Swingline Sublimit; (B) the Facility B Revolving Exposure of any Lender would exceed such Lender’s Facility B Commitment; (C) the total Revolving Exposure would exceed the lesser of (x) the aggregate amount of the ~~requested Swingline Loan~~ Commitments and (y) the Aggregate Borrowing Base; (D) the total Facility B Revolving Exposure would exceed the lesser of (x) if the ~~funds are not to be credited to a general deposit account~~ aggregate amount of ~~such Borrower maintained with~~ the ~~Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location~~ Facility B Commitments and ~~number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or~~ (y) in the ~~case of any ABR~~ Aggregate Borrowing Base minus the total Revolving ~~Borrowing or Swingline Loan requested to finance~~ Exposure; or (E) the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit total Facility B Revolving Exposure with respect to the ~~general deposit accounts of such Borrower maintained with~~ European Borrowers would exceed the ~~Swingline Lender for the Swingline Loan (or~~European Sublimit; subject, in the case of ~~a Swingline Loan made to finance the reimbursement~~ each of ~~an LC Disbursement as provided in Section 2.05(f~~clause (A), ~~by remittance to the applicable Issuing Bank~~(C) ~~by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.~~ and (cD) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, ~~to pay~~ to the Administrative Agent’s authority, ~~for the account of the Swingline Lender~~in its sole discretion, ~~such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation~~ to ~~acquire participations in Swingline Loans~~ make Protective Advances pursuant to ~~this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including~~ the ~~occurrence and continuance~~ terms of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof2.04. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 2 contracts

Samples: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)

Swingline Loans. ~~(a) Subject to~~ During the ~~terms and conditions set forth herein (including Section 2.22)~~Commitment Period, the Swingline Lender agrees, in reliance upon the ~~agreements~~ commitments of the ~~other~~ Revolving Lenders set forth ~~in this Section 2.04~~herein, ~~the Swingline Lender agrees~~ to make revolving credit loans in Dollars (the “Swingline ~~Loans~~ Loans”) to the ~~Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at~~ Borrower on any ~~time outstanding~~ Business Day; provided that ~~will not result in~~ (i) ~~subject~~ after giving effect to ~~Section 9.04(b)(ii~~any Swingline Loan, (x) the Outstanding Amount of Swingline Loans shall not exceed TWENTY-FIVE MILLION DOLLARS ($25,000,000) (as such amount may be decreased in accordance with the provisions hereof, the “Swingline Sublimit”), (y) with respect to the ~~Applicable Fronting Exposure~~ Revolving Lenders collectively, the Outstanding Amount of ~~any Swingline~~ Revolving Obligations shall not exceed the Aggregate Revolving Commitments, and (z) with regard to each Revolving Lender ~~exceeding~~ individually, such Revolving Lender’s Revolving Commitment Percentage of the Outstanding Amount of Revolving Obligations shall not exceed its respective Revolving Commitment, (ii) the ~~aggregate Revolving Exposures exceeding~~ Borrower shall not use the ~~aggregate Revolving Commitments or~~ proceeds of any Swingline Loan to refinance any outstanding Swingline Loan, and (iii) the ~~aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the~~ Swingline Lender shall not be ~~required~~ under any obligation to make a any Swingline Loan if it shall reasonably determine that it has, or by such Credit Extension is likely to ~~refinance an outstanding~~ have, Fronting Exposure. Swingline ~~Loan~~Loans shall be comprised solely of Base Rate Loans, and may be repaid and reborrowed in accordance with the provisions hereof. ~~Within~~ Immediately upon the ~~foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request~~ making of a Swingline Loan, ~~the Parent Borrower~~ each Revolving Lender shall ~~notify the Administrative Agent~~ be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender ~~of such request (i) by telephone (confirmed~~ a participation interest in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan ~~or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above,~~ in an amount equal to ~~pay to the Administrative Agent, for the account of the Swingline Lender,~~ such Lender’s ~~Applicable~~ Revolving Commitment Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 2 contracts

Samples: Credit Agreement (Interval Leisure Group, Inc.), Credit Agreement (Interval Leisure Group, Inc.)

Swingline Loans. (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent Borrower~~ Borrowers shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The ~~Parent Borrower~~ Borrowers may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the ~~Parent Borrower~~Borrowers, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The ~~Parent Borrower~~ Borrowers may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Endeavor Group Holdings, Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.)

Swingline Loans. (a) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ The Swingline Lender ~~agrees~~ is authorized by the Lenders, but is not obligated, to make Swingline Loans up to $25,000,000 plus the ~~Borrowers from time to time during~~ Permitted Overadvance in the ~~Revolving Availability Period denominated in dollars in an~~ aggregate ~~principal amount~~ outstanding at any ~~time outstanding that will not result in (i) subject to Section 9.04(b)(ii)~~time, ~~the Applicable Fronting Exposure~~ consisting only of ~~any Swingline Lender exceeding its Revolving Commitment~~Base Rate Loans, ~~(ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount~~ upon a notice of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify Borrowing received by the Administrative Agent and the Swingline Lender ~~of such request~~ (~~i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone)~~which notice, ~~not later than 10:00 a.m., New York City time, or, if agreed by~~ at the Swingline Lender's discretion, ~~2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall~~ may be ~~irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not~~ submitted prior to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 1:00 p.m., ~~New York City~~ Boston time, on the ~~requested date of~~ Business Day on which such Swingline ~~Loan~~Loan is requested). Swingline Loans shall be subject to periodic settlement with the Revolving Lenders under Section 2.07 below. (cb) ~~The~~ Swingline Loans may be made only in the following circumstances: (A) for administrative convenience, the Swingline Lender ~~may by written~~ may, but is not obligated to, make Swingline Loans in reliance upon the Borrowers' actual or deemed representations under Section 4.02, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances, or (C) if the conditions for borrowing under Section 4.02 cannot be fulfilled, the Borrowers shall give immediate notice ~~given~~ thereof to the Administrative Agent ~~not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of~~ and the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (~~and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph~~a "NONCOMPLIANCE NOTICE"), and the Administrative Agent shall promptly ~~remit to~~ provide each Lender with a copy of the Noncompliance Notice. If the conditions for borrowing under Section 4.02 cannot be fulfilled, the Required Lenders may direct the Swingline Lender ~~the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph~~to, and ~~thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by~~ the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lenderthereupon shall, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of cease making Swingline Loans ~~hereunder.~~ (eother than Permitted Overadvances) ~~The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to~~ until such ~~Swingline Lender,~~ conditions can be satisfied or are waived in accordance with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.Section 9.02

Appears in 2 contracts

Samples: Credit Agreement (Jo-Ann Stores Inc), Credit Agreement (Jo-Ann Stores Inc)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22)~~herein, the Swingline Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section ~~2.04~~2.05, ~~the Swingline Lender agrees~~ to make loans (each such loan, a “Swingline ~~Loans~~ Loan”) to the Borrowers from time to time on any Business Day during the ~~Revolving~~ Availability Period ~~denominated in dollars~~ in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided, however, that ~~will not result in~~ after giving effect to any Swingline Loan, (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure of any Swingline Lender exceeding its~~ Total Outstandings shall not exceed the Maximum Revolving ~~Commitment,~~ Credit and (ii) the aggregate ~~Revolving Exposures exceeding~~ Outstanding Amount of the ~~aggregate Revolving Commitments or (iii)~~ Loans of any Lender at such time, plus such Lender’s Applicable Percentage of the ~~aggregate amount~~ Outstanding Amount of all L/C Obligations at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans ~~outstanding exceeding Swingline Sublimit;~~ at such time shall not exceed such Lender’s Commitment, and provided further that the ~~Swingline Lender~~ Borrowers shall ~~be required to make a~~ not use the proceeds of any Swingline Loan to refinance an any outstanding Swingline Loan. Within the foregoing ~~limits~~ limits, and subject to the other terms and conditions ~~set forth herein~~hereof, the Borrowers may ~~borrow~~borrow under this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05. Each Swingline ~~Loans. (b) To request~~ Loan shall be a Base Rate Loan. Immediately upon the making of a Swingline Loan, ~~the Parent Borrower~~ each Lender shall ~~notify the Administrative Agent~~ be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such ~~request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline~~ Lender~~, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day),~~ ’s Applicable Percentage times the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 2 contracts

Samples: Asset Based Revolving Credit Agreement (Contura Energy, Inc.), Asset Based Revolving Credit Agreement (Contura Energy, Inc.)

Swingline Loans. (a) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ The Swingline Lender ~~agrees~~ is authorized by the Lenders, but is not obligated, to make Swingline Loans up to $35,000,000 plus the ~~Borrowers from time to time during~~ Permitted Overadvance in the ~~Revolving Availability Period denominated in dollars in an~~ aggregate ~~principal amount~~ outstanding at any ~~time outstanding that will not result in (i) subject to Section 9.04(b)(ii)~~time, ~~the Applicable Fronting Exposure~~ consisting only of ~~any Swingline Lender exceeding its Revolving Commitment~~Base Rate Loans, ~~(ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount~~ upon a notice of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify Borrowing received by the Administrative Agent and the Swingline Lender ~~of such request~~ (~~i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone)~~which notice, ~~not later than 10:00 a.m., New York City time, or, if agreed by~~ at the Swingline Lender’s discretion, may be submitted prior to 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., ~~New York City~~ Boston time, on the ~~requested date of~~ Business Day on which such Swingline ~~Loan~~Loan is requested). Swingline Loans shall be subject to periodic settlement with the Lenders under Section 2.08 below. (cb) ~~The~~ Swingline Loans may be made only in the following circumstances: (A) for administrative convenience, the Swingline Lender ~~may by written~~ may, but is not obligated to, make Swingline Loans in reliance upon the Borrowers’ actual or deemed representations under Section 4.02, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances, or (C) if the conditions for borrowing under Section 4.02 cannot be fulfilled, the Lead Borrower shall give immediate notice ~~given~~ thereof to the Administrative Agent ~~not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of~~ and the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (~~and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph~~a “Noncompliance Notice”), and the Administrative Agent shall promptly ~~remit to~~ provide each Lender with a copy of the Noncompliance Notice. If the conditions for borrowing under Section 4.02 cannot be fulfilled, the Required Lenders may direct the Swingline Lender ~~the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph~~to, and ~~thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by~~ the Swingline Lender ~~from~~ thereupon shall, cease making Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9.02 hereof. Unless the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Required Lenders ~~that shall have made their payments pursuant to this paragraph and to~~ so direct the Swingline Lender, ~~as their interests may appear; provided that any such payment so remitted shall be repaid to~~ the Swingline Lender or may, but is not obligated to, continue to make Swingline Loans beginning one Business Day after the ~~Administrative Agent, as the case may be, and thereafter~~ Non-Compliance Notice is furnished to the ~~Borrowers~~Lenders. Notwithstanding the foregoing, ~~if and to the extent such payment is required to~~ no Swingline Loans shall be ~~refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan~~ made pursuant to this ~~paragraph shall not relieve~~ subsection (b) (other than Permitted Overadvances) if the ~~Borrowers~~ aggregate outstanding amount of ~~any default in~~ the ~~payment thereof. (d) The Parent Borrower may, at any time~~ Loans and ~~from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender~~ Letter of ~~an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to~~ Credit Outstandings would exceed the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier lower of (i) ~~such Swingline Lender’s acknowledging receipt of such notice~~ $350,000,000 or any other amount to which the Commitments have then been increased or reduced by the Borrowers pursuant to Sections 2.02 or 2.16, and (ii) the ~~fifth Business Day following the date~~ then amount of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline LoansBorrowing Base.

Appears in 1 contract

Samples: Credit Agreement (Petsmart Inc)

Swingline Loans. In order to reduce the frequency of transfers of funds from Lenders to Agent for making Revolving Credit Loans and for so long as no Default or Event of Default has occurred and is continuing, Agent shall be permitted (abut not required) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees~~ to make ~~Swingline~~ Revolving Credit Loans to ~~the~~ Borrowers ~~from time~~ upon request by Borrower Representative (such Revolving Credit Loans to ~~time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding~~ be designated as "Swingline Loans"); provided that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding ~~exceeding Swingline Sublimit~~at any time will not (i) exceed $22,500,00025,000,000; ~~provided that~~ (ii) when added to the ~~Swingline Lender shall be required~~ principal amount of Agent's other Revolving Credit Loans then outstanding plus Agent's Revolving Loan Percentage of the LC Exposure, exceed Agent's Revolving Credit Commitment; or (iii) when added to ~~make a Swingline Loan to refinance an~~ the principal amount of all other Revolving Credit Loans then outstanding ~~Swingline Loan~~plus the LC Exposure (other than the Cash Collateralized LC Exposure), exceed the Borrowing Base. Within the foregoing ~~limits and subject to the terms and conditions set forth herein~~limits, ~~the~~ Borrowers may borrow, ~~prepay~~ repay and reborrow Swingline Loans. . All Swingline Loans shall be treated as Revolving Credit Loans for purposes of this Agreement, except that (a) all Swingline Loans shall be Base Rate Portions and (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references notwithstanding anything herein to the ~~term “Swingline Lender” shall be deemed to include such Revolving Lender~~ contrary (other than as set forth in ~~its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate~~ the ~~appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender~~next succeeding sentence), ~~with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice~~ all principal and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement interest paid with respect to Swingline Loans shall be for the sole account of Agent in its capacity as the lender of Swingline Loans. Notwithstanding the foregoing, not more than two Business Days after (1) Lenders receive notice from Agent that a Swingline Loan has been advanced in respect of a drawing under a Letter of Credit or (2) in any other circumstance, demand is made by ~~it prior~~ Agent after the occurrence and during the continuance of an Event of Default, each Lender shall irrevocably and unconditionally purchase and receive from Agent, without recourse or warranty from Agent, an undivided interest and participation in each Swingline Loan to the extent of such Lender's Revolving Loan Percentage thereof, by paying to Agent, in same day funds, an amount equal to such ~~termination~~Lender's Revolving Loan Percentage of such Swingline Loan. Agent shall request settlement with the Lenders on a weekly basis, ~~but shall not make any additional~~ or on a more frequent basis if so determined by Agent in its sole discretion, with respect to the outstanding Swingline Loans.

Appears in 1 contract

Samples: Loan and Security Agreement (Century Aluminum Co)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04~~herein, the Swingline Lender agrees to make Swingline Loans in Agreed Currencies to the Borrowers from time to time during the ~~Revolving~~ Availability ~~Period denominated in dollars~~ Period, in an aggregate principal ~~amount~~ Dollar Amount at any time outstanding that will not result in (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure~~ aggregate principal Dollar Amount of ~~any~~ outstanding Swingline ~~Lender~~ Loans exceeding ~~its Revolving Commitment,~~ the Swingline Sublimit or (ii) the ~~aggregate~~ Dollar Amount of the total Revolving Credit Exposures exceeding the ~~aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit~~Aggregate Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers~~ Company may borrow, prepay and reborrow Swingline Loans. Subject to Section 2.14, Swingline Loans shall bear interest at the rates prescribed in Section 2.13(c). (b) Each Swingline Loan shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 (or, if such Borrowing is denominated in a Foreign Currency, the Equivalent Amount of such currency), or such other minimum amounts and multiples as the Swingline Lender shall determine. To request a Swingline Loan, the ~~Parent Borrower~~ applicable Borrower, or the Company on behalf of the Foreign Subsidiary Borrower, shall notify the Administrative Agent ~~and the Swingline Lender~~ of such request (i) by telephone (confirmed by telecopy) in ~~writing~~the case of a Swingline Loan that is an ABR Loan, and (ii) or by ~~facsimile (confirmed by telephone)~~telecopy in all other cases, not later than ~~10:00 a.m.~~12:00 noon, ~~New York City time~~Local Time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of ~~such~~ a proposed Swingline ~~Loan~~Loan in the case of a Swingline Loan to the Company in Dollars, and not later than the time agreed upon by the applicable Borrower and Swingline Lender with respect to a Swingline Loan in a Foreign Currency or to the Foreign Subsidiary Borrower. Each such notice shall be irrevocable and shall specify the name of the applicable Borrower, the requested date (which shall be a Business Day), the ~~amount of~~ relevant Agreed Currency, and the requested maturity date and, if applicable, the Interest Period therefor. Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request, or to elect to continue, any Swingline ~~Loan and (x)~~ Borrowing if the ~~funds are not to be credited to a general deposit account of such Borrower maintained~~ Interest Period requested with respect thereto would end after the Maturity Date. The Administrative Agent will promptly advise the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ~~ABR Revolving Borrowing~~ such notice received from the Company or ~~Swingline Loan requested to finance~~ the ~~reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement~~Foreign Subsidiary Borrower. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the applicable Borrower by means of a credit to the general deposit ~~accounts~~ account of such Borrower ~~maintained~~ with the Swingline Lender ~~for the Swingline Loan~~ (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.06(e), by remittance to the ~~applicable~~ Issuing Bank) by 3:00 p.m., ~~New York City time~~Local Time, on the requested date of such Swingline Loan; provided, that Swingline Loans denominated in Danish Kroner may not be available until the next Business Day. (c) Subject to Section 2.10, each Borrower hereby unconditionally promises to pay to the Swingline Lender the then unpaid principal amount of such Swingline Loan with interest on the earlier of (i) the Maturity Date and (ii) (x) in the case of any Swingline Loan denominated in Dollars or euro, on the seventh (7th) day after such Swingline Loan is made (or such shorter period with respect to principal or interest as the Swingline Lender and the applicable Borrower shall have agreed), and (y) in the case of any Swingline Loan denominated in an Agreed Currency other than Dollars or euro on the thirtieth (30th) day after such Swingline Loan is made (or such shorter period with respect to principal or interest as the Swingline Lender and the applicable Borrower shall have agreed); provided, that upon receipt of written notice from the applicable Borrower no fewer than four (4) Business Days prior to such Swingline Loan’s due date, the Swingline Lender may in its sole and absolute discretion agree to continue such Swingline Loan described in clause (y) as a Swingline Loan for an additional thirty (30) day period (it being understood and agreed that an Interest Payment Date shall still occur on the then current due date); provided, however, that no Swingline Loan may be outstanding as a Swingline Loan for a period greater than 180 consecutive days. (d) The Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00 p.m.~~10:00 a.m., ~~New York City time~~Local Time, on any Business Day require the ~~Revolving~~ Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding, and the Lenders shall acquire such participations automatically and without notice upon the occurrence of an Event of Default under clause (h) or (i) of Section 6.01 with respect to the Company or upon an acceleration of the Loans pursuant to Article VI, in any such case, any such Swingline Loans outstanding in a Foreign Currency shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion and shall thereafter bear interest at the rate applicable to ABR Borrowings in the case of a Swingline Loan to the Company, and at the rate applicable to Eurocurrency Borrowings in Dollars with an Interest Period of one month in the case of a Swingline Loan to the Foreign Subsidiary Borrower. Such notice shall specify the aggregate ~~amount~~ Dollar Amount of Swingline Loans in which ~~Revolving~~ Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each ~~Revolving~~ Lender, specifying in such notice ~~the~~ such Lender’s Applicable Percentage of such Swingline Loan or ~~Swingline~~ Loans. Each ~~Revolving~~ Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to ~~pay~~ pay, in Dollars, to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of the Dollar Amount of such Swingline Loan or ~~Swingline~~ Loans. Each ~~Revolving~~ Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each ~~Revolving~~ Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section ~~2.06~~ 2.07 with respect to Loans made by such Lender (and Section ~~2.06~~ 2.07 shall apply, mutatis mutandis, to the payment obligations of the ~~Revolving Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to the Swingline Lender the amounts so received by it from the ~~Revolving~~ Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Company of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made in Dollars to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from ~~the Borrowers~~ either Borrower (or other ~~Person~~ party on behalf of ~~the Borrowers~~such Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the ~~Revolving~~ Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as ~~the case may be, and thereafter to the Borrowers~~applicable, if and to the extent such payment is required to be refunded to ~~the Borrowers~~ either Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve ~~the Borrowers~~ either Borrower of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Masco Corp /De/)

Swingline Loans. (a) ~~Subject~~ Agent, Swingline Lender and Lenders agree that in order to facilitate the administration of this Agreement and the Other Documents, promptly after Borrowing Agent requests a Domestic Rate Loan on behalf of a Borrower, Swingline Lender may elect, in its sole discretion, to have the terms of this Section 2.5(a) apply to such Borrower’s request by advancing, on behalf of Lenders and in the amount requested, same day funds to the applicable Borrower on the applicable borrowing date (each such Advance made solely by the Swingline Lender pursuant to this Section 2.5(a) is referred to in this Agreement as a “Swingline Advance”), with settlement among them as to the Swingline Advance to take place on a periodic basis as set forth in Section 2.5(c). Each Swingline Advance shall be subject to all the terms and conditions ~~set forth herein (including Section 2.22)~~applicable to other Domestic Rate Loans funded by Lenders, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ except that all payments thereon shall be payable to Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding solely for its ~~Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the~~ own account. The aggregate amount of Swingline Loans outstanding ~~exceeding~~ at any time shall not exceed $10,000,000. All Swingline ~~Sublimit; provided that~~ Advances shall be subject to Section 2.2 hereof and Swingline Advances may not be made if the Swingline Lender has been notified by Agent or Required Lenders that a Default exists and that Swingline Advance may not be made. All Swingline Advances shall be ~~required to make~~ Domestic Rate Loans. The Swingline Loans shall be evidenced by a promissory note (the “Swingline ~~Loan to refinance an outstanding Swingline Loan. Within~~ Note”) in substantially the ~~foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans~~form attached as Exhibit 2.5(a). (b) ~~To request~~ Upon the making of a Swingline ~~Loan,~~ Advance (whether before or after the ~~Parent Borrower shall notify the Administrative Agent~~ occurrence of a Default or Event of Default and ~~the~~ regardless of whether a Settlement has been requested with respect to such Swingline ~~Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone~~Advance), ~~not later than 10:00 a.m.~~each Lender shall be deemed, ~~New York City time~~without further action by any party hereto, ~~or, if agreed by the~~ to have unconditionally and irrevocably purchased from Swingline Lender, ~~2:00 p.m.~~ as the case may be, without recourse or warranty, an undivided interest and participation in such Swingline Advance in proportion to its Commitment Percentage. Swingline Lender or Agent may, at any time, require Lenders to fund their participations. From and after the date, if any, on which any Lender is required to fund, and funds, its participation in any Swingline Advances purchased hereunder, Agent shall promptly distribute to such Lender, such Commitment Percentage of all payments of principal and interest and all proceeds of Collateral received by the Agent in respect of such Swingline Advance. (c) Agent, on behalf of Swingline Lender, shall request settlement (a “Settlement”) with Lenders on at least a weekly basis or on any date that Agent elects, by notifying Lenders of such requested Settlement by facsimile, telephone or Electronic Transmission no later than 12:00 p.m., New York City time on the ~~day~~ date of such ~~proposed Swingline Loan~~requested Settlement (the “Settlement Date”). Each ~~such notice shall be irrevocable and shall specify the requested date~~ Lender (~~which shall be a Business Day), the amount of the requested~~ other than Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (orLender, in the case of a the Swingline ~~Loan made to finance~~ Advance) shall transfer the ~~reimbursement~~ amount of ~~an LC Disbursement as provided in Section 2.05(f), by remittance to~~ such Lender’s Commitment Percentage of the outstanding principal amount of the applicable ~~Issuing Bank) by~~ Swingline Advance with respect to which Settlement is requested to Agent, to such account of Agent as Agent may designate, not later than 3:00 p.m., New York City time, on such Settlement Date. Settlements may occur during the ~~requested date~~ existence of ~~such Swingline Loan. (c) The Swingline Lender may by written notice given to~~ a Default or Event of Default and whether or not the ~~Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day~~ applicable conditions precedent set forth in ~~all or a portion of the Swingline Loans outstanding~~Section 8.2 have then been satisfied. Such ~~notice~~ amounts transferred to Agent shall ~~specify~~ be applied against the ~~aggregate amount~~ amounts of Swingline ~~Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the~~ Lender’s ~~Applicable~~ Swingline Advances and, together with Swingline Lender’s Commitment Percentage of such Swingline ~~Loan or Swingline Loans. Each~~ Advance, shall constitute Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Advances of such ~~Swingline Loan or Swingline Loans~~Lenders, respectively. ~~Each Revolving Lender acknowledges and agrees that its obligation~~ If any such amount is not transferred to ~~acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected~~ Agent by any ~~circumstance whatsoever~~Lender on such Settlement Date, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall ~~have been reduced~~ be entitled to ~~zero. Notwithstanding the effectiveness of any~~ recover such ~~termination, the terminated Swingline~~ amount on demand from such Lender ~~shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement~~ together with ~~respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~interest thereon as specified in Section 2.23.

Appears in 1 contract

Samples: Revolving Credit, Term Loan and Security Agreement (Stream Global Services, Inc.)

Swingline Loans. (a) ~~Subject~~ In order to reduce the frequency of transfers of funds from Revolving Lenders to the ~~terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04~~Administrative Agent for making Revolving Loans, the Swingline Lender ~~agrees~~ shall be permitted (but not required) to make ~~Swingline~~ Revolving Loans to the Borrowers ~~from time~~ upon request by the Administrative Borrower (such Revolving Loans to ~~time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding~~ be designated as “Swingline Loans”) provided that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding ~~exceeding Swingline Sublimit; provided that~~ at any time will not (a) exceed the Swingline ~~Lender shall be required~~ Loan Sublimit or (b) when added to ~~make a Swingline Loan to refinance an~~ the principal amount of all other Revolving Loans then outstanding ~~Swingline Loan~~plus the LC Amount, exceed the Line Cap. Within the foregoing ~~limits and subject to the terms and conditions set forth herein~~limits, the Borrowers may borrow, ~~prepay~~ repay and reborrow Swingline Loans. All Swingline Loans shall be treated as Revolving Loans for purposes of this Agreement, except that all Swingline Loans shall be Reference Rate Loans and, except as provided in paragraph (b) of this subsection 2.12, all principal and interest paid with respect to Swingline Loans shall be for the sole account of Swingline Lender. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender ~~shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or~~may, in ~~the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f~~its sole discretion (but not less frequently than weekly), ~~by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by~~ provide written notice ~~given~~ to the Administrative Agent ~~not later than 2:00 p.m., New York City time, on any Business Day~~ that it shall require the Revolving Lenders to make Revolving Loans to repay all or a portion of the Swingline Loans outstanding or, if Revolving Lenders are prohibited from making Revolving Loans at such time, to acquire participations ~~on such Business Day~~ in all or a portion of the Swingline Loans outstanding~~. Such~~ ; provided that such notice shall ~~specify~~ be deemed to have been automatically given upon the ~~aggregate amount~~ occurrence of ~~Swingline Loans in which Revolving Lenders will participate~~a Default or an Event of Default under Section 9.01(g). ~~Promptly~~ Administrative Agent will, promptly upon receipt of such notice, ~~the Administrative Agent will~~ give notice ~~thereof~~ to each Revolving Lender, specifying in such notice ~~the~~ such Revolving Lender’s ~~Applicable Percentage~~ Pro Rata Share of such Swingline ~~Loan or Swingline Loans~~Loan. ~~Each~~ In furtherance of the foregoing, each Revolving Lender hereby irrevocably, absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving Lender’s ~~Applicable Percentage~~ Pro Rata Share of such Swingline ~~Loan or Swingline Loans~~Loan. Each Revolving Lender acknowledges and agrees that its obligation to make Revolving Loans to repay Swingline Loans and/or to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any reduction or termination~~ an Event of ~~the Revolving Commitments~~Default, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section ~~2.06~~ 2.01(a) with respect to Loans made by such ~~Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph)~~Lender, and the Administrative Agent shall promptly ~~remit~~ pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Administrative Borrower of any Revolving Loans made or participations in any Swingline Loan acquired pursuant to this ~~paragraph,~~ paragraph and thereafter payments by the Borrowers in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of Revolving Loans to repay such Swingline Loan or a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative ~~Agent;~~ Agent and any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers (or any other Person liable for any obligations of Borrowers) of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Abl Financing Agreement (Limbach Holdings, Inc.)

Swingline Loans. (a) ~~Subject~~ In order to reduce the ~~terms~~ frequency of transfers of funds from Lenders to Agent for making Revolving Credit Loans and ~~conditions set forth herein~~ for so long as no Default or Event of Default exists, Agent shall be permitted (~~including Section 2.22~~but not required) to make Revolving Credit Loans to Co-Borrowers upon request by Borrower, on its own behalf and on behalf of each other Co-Borrower (such Revolving Credit Loans to be designated as “Swingline Loans”), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding provided that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding ~~exceeding Swingline Sublimit~~at any time will not (i) exceed Five Million Dollars ($5,000,000); ~~provided that~~ (ii) when added to the ~~Swingline Lender shall be required~~ principal amount of Agent’s other Revolving Credit Loans then outstanding plus Agent’s Revolving Loan Percentage of the LC Amount, exceed Agent’s Revolving Credit Commitment; or (iii) when added to ~~make a Swingline Loan to refinance an~~ the principal amount of all other Revolving Credit Loans then outstanding ~~Swingline Loan~~plus the LC Amount, exceed the Borrowing Base. Within the foregoing ~~limits and subject to the terms and conditions set forth herein~~limits, ~~the~~ Co-Borrowers may borrow, ~~prepay~~ repay and reborrow Swingline Loans. All Swingline Loans shall be treated as Revolving Credit Loans for purposes of this Agreement, except that (a) all Swingline Loans shall be included within the Base Rate Revolving Portion and (b) notwithstanding anything herein to the contrary (other than as set forth in the next succeeding sentence), all principal and interest paid with respect to Swingline Loans shall be for the sole account of Agent in its capacity as the lender of Swingline Loans. Notwithstanding the foregoing, not more than 2 Business Days after (1) Lenders receive notice from Agent that a Swingline Loan has been advanced in respect of a drawing under a Letter of Credit or LC Guaranty or (2) in any other circumstance, demand is made by Agent during the continuance of an Event of Default, each Lender shall irrevocably and unconditionally purchase and receive from Agent, without recourse or warranty from Agent, an undivided interest and participation in each Swingline Loan to the extent of such Lender’s Revolving Loan Percentage thereof (and to the extent such Swingline Loan has not been refinanced with Revolving Loans pursuant to subsection 1.1.4(b)), by paying to Agent, in same day funds, an amount equal to such Lender’s Revolving Loan Percentage of such Swingline Loan. (b) ~~To request a Swingline Loan~~As frequently as determined by Agent, ~~the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone),~~ but not ~~later~~ less frequently than ~~10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the~~ one day ~~of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date~~ per each week (which day shall be a Business Day), ~~the amount~~ Agent shall notify each Lender of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans outstanding as of the end of the previous day and the amount of Revolving Loans required to be made by each Lender to refinance such outstanding Swingline Loans (which shall be in ~~which Revolving Lenders will participate. Promptly upon receipt~~ the amount of ~~such notice, the Administrative Agent will give notice thereof to~~ each ~~Revolving Lender, specifying in such notice the~~ Lender’s ~~Applicable~~ Revolving Loan Percentage of such ~~Swingline Loan or~~ outstanding Swingline Loans). ~~Each Revolving Lender hereby absolutely and unconditionally agrees, upon~~ Upon its receipt of ~~notice as provided above~~a request from Agent under the first sentence of this subsection 1.1.4(b), ~~to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline~~ each Lender (including Fleet) shall make a Revolving Loan ~~or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and~~ (which shall not be ~~affected by any circumstance whatsoever, including the occurrence and continuance of~~ made as a ~~Default or any reduction or termination~~ Swingline Loan) in an amount equal to its Revolving Loan Percentage of the ~~Revolving Commitments~~aggregate principal amount of Swingline Loans to be refinanced, and ~~that each~~ make the proceeds of such ~~payment shall be made without any offset~~Revolving Loans available to Agent, ~~abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of~~ in immediately available funds, in at the ~~same manner as provided in Section 2.06 with respect to Loans made by~~ main office of Agent not later than 12:00 noon (Chicago time) on the date such ~~Lender (and Section 2.06 shall apply, mutatis mutandis,~~ notice was received. Notwithstanding anything to the ~~payment obligations of the~~ contrary, a Lender shall not be obligated to make any Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of Loan or purchase any ~~participations~~ participation in any Swingline Loan ~~acquired~~ under this Section unless (A) Agent believed in good faith that all conditions to making the subject Revolving Loan were satisfied at the time the related Swingline Loan was made, or (B) such Lender has actual knowledge, by receipt of the statements furnished to it pursuant to ~~this paragraph~~Section 8.1.3 or otherwise, that any such condition had not been satisfied and ~~thereafter payments~~ failed to notify Agent in ~~respect of~~ a writing received by Agent prior to the time it made such Swingline Loan that Agent was not authorized to make a Swingline Loan until such condition has been satisfied. The proceeds of Revolving Loans made pursuant to the preceding sentence shall be ~~made~~ delivered to ~~the Administrative~~ Agent (and not to ~~the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers~~any Co-Borrower) ~~in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender~~ and applied to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional outstanding Swingline Loans.

Appears in 1 contract

Samples: Loan and Security Agreement (Pw Eagle Inc)

Appears in 1 contract

Samples: Senior Unsecured Revolving Credit Agreement (Teva Pharmaceutical Industries LTD)

Swingline Loans. In order to reduce the frequency of transfers of funds from Lenders to Administrative Agent for making Revolving Credit Loans and for so long as no Default or Event of Default exists, Administrative Agent shall be permitted (abut not required) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees~~ to make ~~Swingline~~ Revolving Credit Loans to ~~the~~ Borrowers ~~from time~~ upon request by Borrowers (such Revolving Credit Loans to ~~time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding~~ be designated as “Swingline Loans”); provided that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding ~~exceeding Swingline Sublimit~~at any time will not (i) exceed $10,000,000; ~~provided that~~ (ii) when added to the ~~Swingline Lender shall be required~~ principal amount of Administrative Agent’s other Revolving Credit Loans then outstanding plus the product of Administrative Agent’s Revolving Loan Percentage multiplied by the sum of the LC Amount and the Outstanding LC Obligations, exceed Administrative Agent’s Revolving Loan Commitment; or (iii) when added to ~~make a Swingline Loan to refinance an~~ the principal amount of all other Revolving Credit Loans then outstanding ~~Swingline Loan~~plus the LC Amount plus the Outstanding LC Obligations, exceed the Borrowing Base. Within the foregoing ~~limits and subject to the terms and conditions set forth herein~~limits, ~~the~~ Borrowers may borrow, ~~prepay~~ repay and reborrow Swingline Loans. . All Swingline Loans shall be treated as Revolving Credit Loans for purposes of this Agreement and accordingly each Lender shall be deemed to have an undivided interest and participation therein to the extent of such Lender’s Revolving Loan Percentage thereof, except that (a) all Swingline Loans shall be Base Rate Revolving Portions and (b) ~~To request~~ notwithstanding anything herein to the contrary (other than as set forth in the next succeeding sentence), all principal and interest paid with respect to Swingline Loans shall be for the sole account of Administrative Agent in its capacity as the lender of Swingline Loans. Notwithstanding the foregoing, not more than 2 Business Days after (1) Lenders receive notice from Administrative Agent that a Swingline ~~Loan~~Loan has been advanced in respect of a drawing under a Letter of Credit or (2) in any other circumstance, ~~the Parent Borrower shall notify the~~ demand is made by Administrative Agent ~~and~~ (which demand shall be made on a bi-weekly or more frequent basis in the ~~Swingline Lender~~ discretion of ~~such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone~~Administrative Agent), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline each Lender shall ~~make~~ irrevocably and unconditionally fund, without recourse or warranty from Administrative Agent, its undivided interest and participation in each Swingline Loan ~~available to such Borrower by means of a credit~~ to the ~~general deposit accounts~~ extent of such ~~Borrower maintained with the Swingline Lender for the Swingline~~ Lender’s Revolving Loan ~~(or~~Percentage thereof, by paying to Administrative Agent, in ~~the case of a Swingline Loan made to finance the reimbursement of~~ same day funds, an ~~LC Disbursement as provided in Section 2.05(f), by remittance~~ amount equal to the ~~applicable Issuing Bank)~~ product of such Lender’s Revolving Loan Percentage multiplied by ~~3:00 p.m., New York City time, on~~ the ~~requested date~~ principal amount of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Loan and Security Agreement (Nes Rentals Holdings Inc)

Swingline Loans. (a) ~~Subject~~ In addition to the Loans provided for in Section 2.01(a) hereof and subject to the terms and conditions ~~set forth herein (including Section 2.22), in reliance upon the agreements~~ of ~~the other Lenders set forth in~~ this ~~Section 2.04~~Agreement, the ~~Swingline~~ Lender agrees to make ~~Swingline Loans~~ loans ("SWINGLINE LOANS") to the Borrowers ~~from time to time~~ during the ~~Revolving Availability Period denominated~~ period from the date hereof to but excluding the Commitment Termination Date, PROVIDED that the aggregate Principal Amount of all Loans (including all Swingline Loans), together with the aggregate amount of all Letter of Credit Liabilities (with the amounts of any Loans or Letters of Credit Liabilities outstanding in ~~dollars~~ U.S. Dollars expressed as an Equivalent Amount in ~~an aggregate principal amount~~ Canadian Dollars) shall not at any time ~~outstanding that will not result in~~ exceed the lesser of (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iiix) the aggregate amount of the Commitment and (y) the most recently determined Borrowing Base, nor shall the aggregate Principal Amount of all Swingline Loans ~~outstanding exceeding~~ exceed C$5,000,000. All Swingline ~~Sublimit; provided that the Swingline Lender~~ Loans shall be ~~required to make a Swingline Loan to refinance an outstanding Swingline Loan~~denominated in Canadian Dollars and may not be made as BA Loans. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. Swingline Loans shall constitute Loans hereunder. (b) To In order to request a Swingline Loan, the ~~Parent~~ applicable Borrower shall notify the ~~Administrative Agent and the Swingline~~ Lender of such request ~~(i)~~ by telephone (confirmed ~~in writing) or~~ by ~~facsimile (confirmed by telephone~~telecopy), not later than ~~10:00 a.m.~~2:00 p.m., ~~New York City time~~Calgary time (or 4:00 p.m. Calgary time in the case of borrowings to satisfy outstandings under the BOM Agreement), ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of ~~such~~ a proposed Swingline Loan. Notwithstanding the foregoing, in the event that at any time BOM makes demand for payment of any amounts to which it is entitled under the BOM Agreement and such amounts are not paid by the close of business on the date of demand, ProMark shall be deemed to have notified the Lender of a request for a Swingline Loan in an amount equal to the lesser of (i) $5,000,000 less the aggregate Principal Amount of any outstanding Swingline Loans and (ii) the amounts demanded under the BOM Agreement. Each such notice provided by a Borrower by telephone request shall be irrevocable and shall specify the requested date (which shall be a Business Day~~), the~~ ) and amount of the requested Swingline ~~Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline~~ Loan. The Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall ~~comply with Section 2.06, or (y) in the case~~ promptly advise BOM of any ~~ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made~~ such ~~LC Disbursement~~notice received from a Borrower. The ~~Swingline~~ Lender shall make each Swingline Loan available to ~~such~~ the applicable Borrower by means of a credit to the general deposit ~~accounts~~ account of such Borrower ~~maintained with~~ at the ~~Swingline Lender for the Swingline Loan (or~~XXX Xxxx Xxxxxx, ~~in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f)~~Xxxxxxx, Xxxxxxx by ~~remittance to the applicable Issuing Bank) by 3:00~~ 2:30 p.m., ~~New York City~~ Calgary time, on the requested date of such Swingline Loan~~. (c) The Swingline Lender may by written notice given to~~ , or in the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance case of a ~~Default~~ deemed notice on or ~~any reduction or termination of~~ before the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth next Business Day following the date of that BOM so provides the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loansdemand for payment.

Appears in 1 contract

Samples: Credit Agreement (Canadian Forest Oil LTD)

Appears in 1 contract

Samples: Credit Agreement (Brookfield Property REIT Inc.)

Swingline Loans. (a) ~~Subject~~ The Swingline Lender is authorized by the Lenders and shall, subject to the ~~terms and conditions set forth herein (including Section 2.22)~~provisions of this Section, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to~~ make Swingline Loans up to the ~~Borrowers from time to time during~~ Swingline Loan Sublimit in the ~~Revolving Availability Period denominated in dollars in an~~ aggregate ~~principal amount~~ outstanding at any time ~~outstanding that will not result in~~ (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount which requests for Borrowings of Swingline Loans ~~outstanding exceeding Swingline Sublimit; provided that the Swingline Lender~~ shall be ~~required to make~~ in minimum integrals of $500,000) consisting only of Prime Rate Loans, upon a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify notice of Borrowing received by the Administrative Agent and the Swingline Lender ~~of such request~~ (~~i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone)~~which notice, ~~not later than 10:00 a.m., New York City time, or, if agreed by~~ at the Swingline Lender’s discretion, ~~2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall~~ may be ~~irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not~~ submitted prior to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 1:00 p.m., ~~New York City~~ Boston time, on the ~~requested date of~~ Business Day on which such Swingline ~~Loan~~Loan is requested). Swingline Loans shall be subject to periodic settlement with the Lenders under Section 2.8 below. (cb) ~~The~~ Swingline Loans may be made only in the following circumstances: (A) for administrative convenience, the Swingline Lender ~~may by written~~ shall, at the Lead Borrower’s request, make Swingline Loans in reliance upon the Borrowers’ actual or deemed representations under Section 4.2, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances. If the conditions for borrowing under Section 4.2 cannot be fulfilled at the time of a requested Swingline Loan, the Lead Borrower shall give immediate notice ~~given~~ thereof to the Administrative Agent ~~not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of~~ and the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (~~and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph~~a “Noncompliance Notice”), and the Administrative Agent shall promptly ~~remit to~~ provide each Lender with a copy of the Noncompliance Notice. If the conditions for borrowing under Section 4.2 cannot be fulfilled, the Required Lenders may direct the Swingline Lender ~~the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph~~to, and ~~thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by~~ the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lenderthereupon shall, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of cease making Swingline Loans ~~hereunder~~(other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Brown Shoe Co Inc)

Swingline Loans. (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section ~~9.04(b)(ii~~9.04(a)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent Borrower~~ Borrowers shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(g), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(g), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The ~~Parent Borrower~~ Borrowers may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the ~~Parent Borrower~~Borrowers, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The ~~Parent Borrower~~ Borrowers may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Endeavor Group Holdings, Inc.)

Swingline Loans. (a) Subject to the terms and conditions ~~set forth herein (including Section 2.22)~~of this Agreement, Bank One in ~~reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender~~ its individual capacity agrees to make ~~Swingline Loans to the Borrowers~~ at any time and from time to time ~~during~~ after the initial Borrowing Date and prior to the Swingline Expiry Date swingline loans to Borrower ("Swingline Loans"), which Swingline Loans (i) shall be made and maintained as Prime Rate Loans, (ii) shall be denominated in U.S. Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iv) shall not exceed in aggregate principal amount at any one time outstanding, when combined with the aggregate principal amount of all Revolving Credit Loans then outstanding, the Revolving ~~Availability Period denominated~~ Credit Loan Commitments and (v) shall not exceed in ~~dollars in an~~ aggregate principal amount at any time outstanding ~~that will not result~~ the lesser of (y) the Borrowing Base (determined as of the most recent month end or, if Borrower elects to provide an interim Borrowing Base Certificate pursuant to subsection 6.4 hereof, as of the date stated in such Borrowing Base Certificate) minus the sum of (~~i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii~~1) the aggregate ~~Revolving Exposures exceeding~~ principal amount of undrawn and drawn Standby L/Cs, exclusive of the ~~aggregate Revolving Commitments or~~ amount of Standby L/Cs issued for the purpose of satisfying bonding requirements, then outstanding, (~~iii~~2) the aggregate principal amount of undrawn and drawn Guaranteed HNB Joint Ventures Letters of Credit, exclusive of the amount of Guaranteed HNB Joint Ventures Letters of Credit issued for the purpose of satisfying bonding requirements, then outstanding, and (3) the aggregate principal amount of all Revolving Credit Loans then outstanding, or (z) the Maximum Swingline ~~Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to~~ Amount. Bank One will not make a Swingline Loan ~~to refinance~~ after it has received written notice from Borrower or the Required Banks stating that a Default or an ~~outstanding Swingline Loan. Within~~ Event of Default exists until such time as Bank One shall have received a written notice of (i) rescission of such notice from the ~~foregoing limits and subject to~~ party or parties originally delivering the ~~terms and conditions set forth herein~~same or (ii) a waiver of such Default or Event of Default, as required by the ~~Borrowers may borrow, prepay and reborrow Swingline Loans~~Credit Agreement. (b) ~~To request a Swingline Loan, the Parent~~ Borrower shall ~~notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing)~~ give Bank One irrevocable telephonic or ~~by facsimile (confirmed by telephone)~~written notice prior to 3:00 p.m., ~~not later than 10:00 a.m.~~Columbus, ~~New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City~~ Ohio time on the ~~day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the~~ requested ~~date (which shall be a Business Day),~~ Borrowing Date specifying the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall ~~comply with Section 2.06,~~ be in a minimum amount of $100,000 or ~~(y)~~ whole multiples of $10,000 in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursementexcess thereof. The Swingline ~~Lender shall make each Swingline Loan~~ Loans will then be made available to ~~such~~ Borrower by ~~means~~ Bank One by crediting the account of ~~a credit to the general deposit accounts of such~~ Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the ~~requested date~~ books of ~~such Swingline Loan~~Bank One. (c) The Swingline ~~Lender may~~ Loans shall be evidenced by ~~written notice given~~ a promissory note of Borrower, substantially in the form of Exhibit C attached hereto, (the "Swingline Note"), payable to the ~~Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require~~ order of Bank One and evidencing the ~~Revolving Lenders~~ obligation of Borrower to ~~acquire participations on such Business Day in all or a portion~~ pay the aggregate unpaid principal amount of the Swingline Loans ~~outstanding~~made by Bank One with interest thereon as prescribed in subsection 2.5 hereof. ~~Such notice shall specify~~ Bank One is hereby authorized to record electronically or otherwise the ~~aggregate~~ date and amount of each Swingline ~~Loans in which Revolving Lenders will participate. Promptly upon receipt~~ Loan, and the date and amount of each payment or prepayment of principal thereof, and any such ~~notice~~recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided, however, the ~~Administrative Agent will give notice thereof~~ failure of Bank One to ~~each Revolving Lender~~make any such recordation(s) shall not affect the obligation of Borrower to repay outstanding principal, ~~specifying~~ interest, or any other amount due hereunder or under the Swingline Note in ~~such notice~~ accordance with the ~~Lender’s Applicable Percentage~~ terms hereof and thereof. The Swingline Note shall (i) be dated as of ~~such~~ the date hereof, (ii) be stated to mature on the Swingline ~~Loan or Swingline Loans. Each Revolving Lender hereby absolutely~~ Expiry Date, and ~~unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent,~~ (iii) bear interest for the ~~account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges~~ period from and ~~agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,~~ including the ~~occurrence and continuance of a Default or any reduction or termination of~~ date thereof on the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in unpaid principal amount thereof from time to time outstanding at the ~~same manner~~ applicable interest rate per annum determined as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the subsection 2.5 hereof. Interest on each Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan Note shall be ~~made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers)~~ payable as specified in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereofsubsection 2.5 hereof. (d) ~~The Parent Borrower may~~Bank One, at any time and in its sole and absolute discretion, may, on behalf of Borrower (which hereby irrevocably directs Bank One to act on its behalf), request each Bank, including Bank One, to make a Revolving Credit Loan (each, a "Mandatory Borrowing") in an amount equal to such Bank's Revolving Credit Loan Commitment Percentage of the amount of the Swingline Loans (provided that each such request shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case each Bank shall make the proceeds of its Revolving Credit Loan available to Bank One on the immediately succeeding Business Day pro rata based on each Bank's Revolving Credit Loan Commitment Percentage, and the proceeds thereof shall be applied directly to repay Bank One for such outstanding Swingline Loans. Each Bank hereby irrevocably agrees to make Prime Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified by Bank One notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing amount otherwise required hereunder, (ii) whether any conditions specified in Section 5 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing, (v) any reduction in the Revolving Credit Commitments after any such Swingline Loans were made, (vi) Borrower's compliance with Borrowing Base requirements, (vii) any set-off, counterclaim, recoupment, defense or other right which such Bank may have against Bank One, Borrower or any other Person for any reason whatsoever, or (viii) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of Borrower), each Bank (other than Bank One) hereby agrees that it shall forthwith purchase from ~~time~~ Bank One (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to ~~time, designate as additional Swingline Lenders one or more Revolving Lenders that agree~~ cause the Banks to ~~serve~~ share in such ~~capacity as~~ Swingline Loans ratably based upon their respective Revolving Credit Loan Commitment Percentages, provided ~~below. The acceptance by a Revolving Lender of an appointment as a~~ that all interest payable on the Swingline ~~Lender hereunder~~ Loans shall be ~~evidenced by an agreement, which shall be in form and substance reasonably satisfactory to~~ for the ~~Administrative Agent and~~ account of Bank One until the ~~Parent Borrower, executed by~~ date the ~~Borrowers, the Administrative Agent and such designated Swingline Lender~~Mandatory Borrowing is made, and, to the extent attributable to the Mandatory Borrowing, shall be payable to the Bank making such Mandatory Borrowing from and after the ~~effective~~ date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunderMandatory Borrowing is made. (e) ~~The Parent Borrower may terminate the appointment of~~ Whenever, at any time after Bank One has received from any Bank such Bank's participating interest in a Swingline ~~Lender as a “Swingline Lender” hereunder by providing a written notice thereof~~ Loan and Bank One receives any payment on account thereof, Bank One will distribute to such ~~Swingline Lender~~Bank its participating interest in such amount (appropriately adjusted, ~~with a copy~~ in the case of interest payments, to reflect the ~~Administrative Agent. Any~~ period of time during which such ~~termination shall become effective upon~~ Bank's participating interest was outstanding and funded); provided, however, that in the ~~earlier of (i)~~ event that such ~~Swingline Lender’s acknowledging receipt of~~ payment received by Bank One is required to be returned, such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced Bank will return to ~~zero. Notwithstanding the effectiveness of~~ Bank One any ~~such termination, the terminated Swingline Lender shall remain a party hereto and shall continue~~ portion thereof previously distributed by Bank One to ~~have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~it.

Appears in 1 contract

Samples: Revolving Credit Loan Agreement (M I Schottenstein Homes Inc)

Swingline Loans. (a) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ The Swingline Lender ~~agrees~~ is authorized by the Lenders, but is not obligated, to make Swingline Loans up to ~~the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in~~ (i) ~~subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment,~~ $25,000,000 plus (ii) the ~~aggregate Revolving Exposures exceeding~~ Permitted Overadvance, in the aggregate ~~Revolving Commitments or (iii) the aggregate amount~~ outstanding at any time, consisting only of ~~Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make~~ Prime Rate Loans, upon a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify notice of Borrowing received by the Administrative Agent and the Swingline Lender ~~of such request~~ (~~i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone)~~which notice, ~~not later than 10:00 a.m.~~at the Swingline Lender’s discretion, ~~New York City~~ may be submitted prior to 1:00 p.m., Boston time, oron the Business Day on which such Swingline Loan is requested). Swingline Loans shall be subject to periodic settlement with the Lenders under Section 2.08 below. (b) Swingline Loans may be made only in the following circumstances: (A) for administrative convenience, ~~if agreed by~~ the Swingline Lender may, but is not obligated to, make Swingline Loans in reliance upon the Borrower’s actual or deemed representations under Section 4.02, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances. If the conditions for borrowing under Section 4.02 cannot be fulfilled, the Required Lenders may direct the Swingline Lender to, and the Swingline Lender thereupon shall, cease making Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9.02 hereof. Unless the Required Lenders so direct the Swingline Lender, ~~2:00 p.m. New York City time on~~ the ~~day of such proposed~~ Swingline ~~Loan~~Lender may, but is not obligated to, continue to make Swingline Loans notwithstanding that the conditions for borrowing under Section 4.02 cannot be fulfilled. ~~Each such notice~~ No Swingline Loans shall be ~~irrevocable and shall specify~~ made pursuant to this subsection (b) if the ~~requested date (which shall be a Business Day), the~~ aggregate outstanding amount of the ~~requested Swingline Loan~~ Credit Extensions and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans ~~outstanding. Such notice shall specify~~ would exceed the ~~aggregate amount~~ lower of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) ~~such Revolving Lender shall~~ $200,000,000 or any other amount to which the Commitments have ~~all~~ then been increased or reduced by the ~~rights~~ Borrower pursuant to Sections 2.02 and ~~obligations of a Swingline Lender under this Agreement~~ 2.16, and (ii) ~~references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder.~~ (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement other than with respect to ~~Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~Permitted Overadvances) the then amount of the Borrowing Base.

Appears in 1 contract

Samples: Credit Agreement (Dri I Inc)

Swingline Loans. ~~(a) Subject to~~ The Swingline Bank, in its individual capacity, agrees, on the terms and conditions set forth ~~herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth~~ in this ~~Section 2.04~~Agreement, ~~the Swingline Lender agrees~~ to make revolving loans (“Swingline ~~Loans~~ Loans”) in Dollars to the ~~Borrowers~~ Borrower pursuant to this Section from time to time ~~during~~ prior to the ~~Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in~~ Termination Date; provided that, immediately after each such Swingline Loan is made (i) ~~subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii)~~ the aggregate ~~Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate~~ outstanding principal amount of all Swingline Loans ~~outstanding exceeding Swingline Sublimit; provided that~~ shall not exceed the Swingline ~~Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein~~Commitment Amount, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the ~~fifth~~ Aggregate Usage would not exceed the aggregate Commitments. The Agent will, upon request of the Swingline Bank, confirm the Aggregate Usage. Each Swingline Loan shall be in a minimum principal amount equal to the lesser (such lesser amount, “Minimum Swingline Amount”) of (x) $1,000,000 or any larger integral multiple of $1,000,000 and (y) the unused Swingline Commitment Amount. Within the foregoing limits, the Borrower may borrow under this Section, prepay Swingline Loans to the extent permitted by Section 2.12 and reborrow under this Section at any time prior to the Termination Date. Notwithstanding anything to the contrary contained in this Agreement (1) the Swingline Bank shall not be obligated to make any Swingline Loan at a time when any Bank shall be in default of its obligations hereunder unless arrangements to eliminate the Swingline Bank’s risk with respect to such Defaulting Bank’s participation in such Swingline Loan shall have been made for the benefit of the Swingline Bank and such arrangements are satisfactory to the Swingline Bank, and (2) the Swingline Bank shall not make a Swingline Loan if, no later than one Domestic Business Day ~~following~~ prior to the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement Borrowing with respect to such Swingline ~~Loans made by~~ Loan, it ~~prior to such termination, but~~ shall have received written notice from any Bank that the conditions set forth in Article 3 with respect thereto have not ~~make any additional Swingline Loans~~been satisfied.

Appears in 1 contract

Samples: Credit Agreement (CNF Inc)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22)~~herein, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ each Swingline Lender agrees to make Swingline Loans to the ~~Borrowers~~ Borrower from time to time during the ~~Revolving~~ Availability ~~Period denominated in dollars~~ Period, in an aggregate principal amount at any time outstanding that will not result in (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure~~ aggregate principal amount of ~~any~~ outstanding Swingline ~~Lender~~ Loans of all Swingline Lenders exceeding ~~its Revolving Commitment,~~ $50,000,000 or (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving ~~Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided~~ Commitments, p rovided that ~~the~~ no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan, and by requesting a Swingline Loan the Borrower shall be deemed to be representing to each Swingline Lender that the terms set forth in clauses (a)(i) and (a)(ii) above are true and correct on the date of the requested Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers~~ Borrower may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent~~ Borrower shall notify the Administrative Agent ~~and the Swingline Lender~~ of such request ~~(i)~~ by telephone (confirmed ~~in writing) or~~ by ~~facsimile (confirmed by telephone~~telecopy), not later than ~~10:00 a.m.~~2:00 p.m., New York City time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of such proposed Swingline Loan and which Swingline Lender is to make the requested Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day~~), the~~ ) and amount of the requested Swingline ~~Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with~~ Loan. The Administrative Agent will promptly advise the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ~~ABR Revolving Borrowing or Swingline Loan requested to finance~~ such notice received from the ~~reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement~~Borrower. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the Borrower by means of a credit to the general deposit ~~accounts~~ account of ~~such~~ the Borrower maintained with ~~the~~ such Swingline Lender ~~for the Swingline Loan~~ (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(e), by remittance to the ~~applicable~~ Issuing Bank or, to the extent that the Lenders have made payments pursuant to Section 2.05(e) to reimburse the Issuing Bank, to such Lenders and the Issuing Bank as their interests may appear) by ~~3:00~~ 4:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) ~~The~~ Each Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00~~ 12:30 p.m., New York City time, on any Business Day require the ~~Revolving~~ Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans made by it and then outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which ~~Revolving~~ Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each ~~Revolving~~ Lender, specifying in such notice ~~the~~ such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each ~~Revolving~~ Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the applicable Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each ~~Revolving~~ Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this ~~paragraph~~ clause is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each ~~Revolving~~ Lender shall comply with its obligation under this ~~paragraph~~ clause by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the ~~Revolving Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to the Swingline Lender that has made the applicable demand the amounts so received by it from the ~~Revolving~~ Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower of any participations in any Swingline Loan acquired pursuant to this ~~paragraph~~clause, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the applicable Swingline Lender. Any amounts received by ~~the~~ such Swingline Lender from the ~~Borrowers~~ Borrower (or other ~~Person~~ party on behalf of the ~~Borrowers~~Borrower) in respect of a Swingline Loan after receipt by ~~the~~ such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the ~~Revolving~~ Lenders that shall have made their payments pursuant to this ~~paragraph~~ clause and to ~~the~~ such Swingline Lender, as their interests may appear~~; provided~~ , p rovided that any such payment so remitted shall be repaid to ~~the~~ such Swingline Lender or to the Administrative Agent, as ~~the case may be, and thereafter to the Borrowers~~applicable, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this ~~paragraph~~ clause shall not relieve the ~~Borrowers~~ Borrower of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Seagate Technology Holdings PLC)

Swingline Loans. (a) Subject to the terms and conditions ~~set forth herein~~ hereof, the Swingline Lender may, in its sole discretion (~~including Section 2.22~~subject to subsection 2.5(b)), ~~in reliance upon the agreements~~ make a portion of the ~~other Lenders~~ Revolving Commitments available to the Company by making swingline loans (each such loan, a "Swingline Loan") to the Company on any Business Day during the period from the Restatement Date to the Revolving Termination Date in accordance with the procedures set forth in this Section ~~2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars~~ 2.5 in an aggregate principal amount at any one time outstanding ~~that will~~ not ~~result in~~ to exceed the lesser of (ix) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure~~ lesser of ~~any Swingline Lender exceeding its Revolving Commitment,~~ (ii1) the aggregate available amount of the Revolving ~~Exposures exceeding~~ Commitments and (2) the Borrowing Base and (y) $25,000,000, notwithstanding the fact that such Swingline Loans, when aggregated with the Swingline Lender's outstanding Revolving Loans, may exceed the Swingline Lender's Revolving Percentage of the aggregate amount of the Revolving ~~Commitments or~~ Commitments; provided that at no time shall the sum of the Effective Amount of all Swingline Loans, Revolving Loans and L/C Obligations exceed the lesser of (~~iii~~1) the aggregate amount of ~~Swingline Loans outstanding exceeding Swingline Sublimit~~the Revolving Commitments and (2) the Borrowing Base. Subject to the other terms and conditions hereof, the Company may borrow under this subsection 2.5(a), prepay pursuant to subsection 2.5(d) and reborrow pursuant to this subsection 2.5(a) from time to time; provided that the Swingline Lender shall not be ~~required~~ obligated to make ~~a Swingline Loan to refinance an outstanding~~ any Swingline Loan~~. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans~~. (b) ~~To request a Swingline Loan, the Parent Borrower~~ The Company shall ~~notify~~ provide the Administrative Agent and the Swingline Lender irrevocable written notice (or notice by a telephone call confirmed promptly by facsimile) of ~~such request~~ any Swingline Loan requested hereunder (which notice must be received by the Swingline Lender and the Administrative Agent prior to 12:00 p.m. (Chicago time) on the requested Borrowing Date) specifying (i) ~~by telephone~~ the amount to be borrowed and (~~confirmed in writing~~ii) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested ~~date (~~Borrowing Date, which ~~shall~~ must be a Business Day). Upon receipt of such notice, the Swingline Lender will promptly confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such notice from the Company and, if not, the Swingline Lender will provide the Administrative Agent with a copy thereof. If and only if the Administrative Agent notifies the Swingline Lender on the proposed Borrowing Date that it may make available to the Company the amount of the requested Swingline Loan, then, subject to the terms and conditions hereof, the Swingline Lender may make the amount of the requested Swingline Loan ~~and (x) if~~ available to the ~~funds are not to be credited to a general deposit~~ Company by crediting the account of the Company on the books of BofA with the amount of such ~~Borrower maintained with~~ Swingline Loan. The Administrative Agent will not so notify the Swingline Lender ~~because~~ if the Administrative Agent has knowledge that (A) the limitations set forth in the proviso set forth in the first sentence of subsection 2.5(a) are being violated or would be violated by such ~~Borrower is unable to maintain a general deposit account with the~~ Swingline ~~Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06,~~ Loan or (yB) one or more conditions specified in ~~the case of any ABR Revolving Borrowing or~~ Article V is not then satisfied. Each Swingline Loan ~~requested~~ shall be in an aggregate principal amount equal to ~~finance the reimbursement~~ $500,000 or a higher integral multiple of ~~an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement~~$100,000. The Swingline Lender ~~shall make~~ will promptly notify the Administrative Agent of the amount of each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) ~~The~~ Principal of and accrued interest on each Swingline Loan shall be due and payable (i) on demand made by the Swingline Lender ~~may by~~ at any time upon one Business Day's prior notice to the Company with a copy to the Administrative Agent furnished at or before 10:45 a.m. (Chicago time), and (ii) in any event on the Revolving Termination Date. Interest on Swingline Loans shall be for the sole account of the Swingline Lender (except to the extent that the other Lenders have funded the purchase of participations therein pursuant to subsection 2.5(e)). (d) The Company may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of any Swingline Loan, without incurring any premium or penalty; provided that (i) each such voluntary prepayment shall require prior written notice given to the Administrative Agent ~~not~~ and the Swingline Lender no later than ~~2:00 p.m.~~1:00 p.m. (Chicago time) on the day on which the Company intends to make a voluntary prepayment, ~~New York City~~ and (ii) each such voluntary prepayment shall be in an amount equal to $500,000 or a higher integral multiple of $100,000 (or, if less, the aggregate outstanding principal amount of all Swingline Loans then outstanding). Voluntary prepayments of Swingline Loans shall be made by the Company to the Swingline Lender at such office as the Swingline Lender may designate by notice to the Company from time to time, . All such payments shall be made in Dollars and in immediately available funds no later than 4:00 p.m. (Chicago time) on the date specified by the Company pursuant to clause (i) above (and any payment received later than such time shall be deemed to have been received on the next Business Day). The Swingline Lender will promptly notify the Administrative Agent of the amount of each prepayment of Swingline Loans. (e) If (i) any Swingline Loan shall remain outstanding at 11:00 a.m. (Chicago time) on the Business Day ~~require the Revolving Lenders~~ immediately prior to ~~acquire participations~~ a Business Day on which Swingline Loans are due and payable pursuant to subsection 2.5(c) and by such time on such Business Day the Administrative Agent shall have received neither (A) a Notice of Borrowing delivered pursuant to Section 2.3 requesting that Revolving Loans be made pursuant to subsection 2.1(c) on such following Business Day in ~~all~~ an amount at least equal to the aggregate principal amount of such Swingline Loans, nor (B) any other notice indicating the Company's intent to repay such Swingline Loans with funds obtained from other sources, or ~~a portion~~ (ii) any Swingline Loans shall remain outstanding during the existence of an Unmatured Event of Default or Event of Default and the Swingline Lender shall in its sole discretion notify the Administrative Agent that the Swingline Lender desires that such Swingline Loans ~~outstanding. Such notice~~ be converted into Revolving Loans, then the Administrative Agent shall ~~specify~~ be deemed to have received a Notice of Borrowing from the Company pursuant to Section 2.3 requesting that Base Rate Loans be made pursuant to subsection 2.1(c) on the following Business Day in an amount equal to the aggregate amount of such Swingline Loans, and the procedures set forth in subsections 2.3(b) and 2.3(c) shall be followed in making such Base Rate Loans; provided that such Base Rate Loans shall be made notwithstanding the Company's failure to comply with Section 5.3; and provided, further, that if a Borrowing of Revolving Loans becomes legally impracticable and if so required by the Swingline Lender at the time such Revolving Loans are required to be made by the Revolving Lenders in accordance with this subsection 2.5(e), each Revolving Lender agrees that in lieu of making Revolving Loans as described in this subsection 2.5(e), such Revolving Lender shall purchase a participation from the Swingline Lender in the applicable Swingline Loans in ~~which Revolving Lenders will participate. Promptly upon receipt of~~ an amount equal to such ~~notice, the Administrative Agent will give notice thereof to each~~ Revolving Lender~~, specifying in such notice the Lender’s Applicable~~ 's Revolving Percentage of such Swingline ~~Loan~~ Loans, and the procedures set forth in subsections 2.3(b) and 2.3(c) shall be followed in connection with the purchases of such participations. The proceeds of such Base Rate Loans (or participations purchased) shall be delivered by the Administrative Agent to the Swingline Lender to repay such Swingline Loans (or as payment for such participations). A copy of each notice given by the Administrative Agent to the Revolving Lenders pursuant to this subsection 2.5(e) with respect to the making of Loans, or the purchases of participations, shall be promptly delivered by the Administrative Agent to the Company. Each Revolving ~~Lender hereby absolutely and unconditionally agrees~~Lender's obligation in accordance with this Agreement to make the Revolving Loans, ~~upon receipt of notice~~ or purchase the participations, as ~~provided above~~contemplated by this subsection 2.5(e), to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is shall be absolute and unconditional and shall not be affected by any ~~circumstance whatsoever~~circumstance, including ~~the occurrence and continuance of a Default~~ (1) any set-off, counterclaim, recoupment, defense or ~~any reduction or termination of the Revolving Commitments, and that each~~ other right which such ~~payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each~~ Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall may have ~~made their payments pursuant to this paragraph and to~~ against the Swingline Lender, ~~as their interests may appear; provided that~~ the Company or any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers other Person for any ~~reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve~~ reason whatsoever, (2) the ~~Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one~~ occurrence or ~~more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender~~ continuance of an ~~appointment as~~ Unmatured Event of Default, an Event of Default or a ~~Swingline Lender hereunder shall be evidenced by an agreement~~Material Adverse Effect or (3) any other circumstance, ~~which shall be in form and substance reasonably satisfactory~~ happening or event whatsoever, whether or not similar to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loansforegoing.

Appears in 1 contract

Samples: Credit Agreement (Del Monte Foods Co)

Swingline Loans. (a) ~~Subject~~ The Swingline Lender is authorized by the Lenders and shall, subject to the ~~terms and conditions set forth herein (including Section 2.22)~~provisions of this Section, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to~~ make Swingline Loans up to the ~~Borrowers from time to time during~~ Swingline Sublimit in the ~~Revolving Availability Period denominated in dollars in an~~ aggregate ~~principal amount~~ outstanding at any time ~~outstanding that will not result in~~ consisting of only Domestic Prime Rate Loans, upon a notice of Borrowing (iwhich may be telephonic) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify received by the Administrative Agent and the Swingline Lender ~~of such request~~ (~~i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone)~~which notice, ~~not later than 10:00 a.m., New York City time, or, if agreed by~~ at the Swingline Lender’s discretion, ~~2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall~~ may be ~~irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not~~ submitted prior to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 1:00 p.m., New York ~~City~~ time, on the ~~requested date of~~ Business Day on which such Swingline ~~Loan~~Loan is requested) provided further that the Swingline Lender shall not be obligated to make any Swingline Loan at any time when any Lender is at such time a Deteriorating Lender hereunder, unless the Swingline Lender has entered into satisfactory arrangements with the Borrowers or such Lender to eliminate the Swingline Lender’s risk with respect to such Lender. Swingline Loans shall be subject to periodic settlement with the Lenders under Section 2.7 below; provided, however, that during the months of November and December of each calendar year the Administrative Agent shall settle Swingline Loans at such times as it shall determine, in its discretion. (cb) The Swingline Lender ~~may by written notice given to~~ shall, at the ~~Administrative Agent not later than 2:00 p.m.~~Lead Borrower’s request, ~~New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the~~ make Swingline Loans ~~outstanding. Such notice shall specify the aggregate amount of Swingline Loans~~ (A) in ~~which Revolving Lenders will participate. Promptly~~ reliance upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers~~) in respect of a Swingline Loan after receipt by~~ ’ actual or deemed representations under Section 4.2 that the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers applicable conditions for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement borrowing are satisfied and (iiB) ~~references herein to~~ for Permitted Overadvances. If the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.conditions

Appears in 1 contract

Samples: Credit Agreement (Genesco Inc)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04~~herein, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the ~~Revolving~~ Availability Period ~~denominated~~ (i) in ~~dollars~~ US Dollars in an aggregate principal amount at any time outstanding that will not result in ~~(i) subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ US Dollar Swingline Exposure ~~of any~~ exceeding the US Dollar Swingline ~~Lender exceeding its Revolving Commitment,~~ Sublimit and (ii) in Sterling or Euro in an aggregate principal amount at any time outstanding that will not result in the Sterling/Euro Swingline Exposure exceeding the Sterling/Euro Swingline Sublimit, and that in each case will not result in (x) the sum of the US Dollar Equivalent of the principal amounts of outstanding Swingline Loans exceeding US$100,000,000 or (y) the sum of the aggregate Revolving Credit Exposures and the aggregate Competitive Loan Exposures exceeding the aggregate ~~Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit~~Commitments; provided that ~~the~~ no Swingline ~~Lender~~ Loan shall be ~~required to make a Swingline Loan~~ made to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, ~~the Parent~~ a Borrower shall ~~notify the Administrative Agent and the Swingline Lender~~ give notice of such request ~~(i)~~ by telephone (confirmed by telecopy) (i) in ~~writing) or by facsimile~~ the case of a Swingline Loan denominated in US Dollars, to the Swingline Lender (~~confirmed by telephone~~with a copy to the Applicable Agent), not later than ~~10:00 a.m.~~12:00 noon, New York City time, or(ii) in the case of Swingline Loan denominated in Sterling or Euro (other than a Swingline Loan requested by a Belgian Borrowing Subsidiary), ~~if agreed by~~ to the Swingline ~~Lender~~Lender (with a copy to the Applicable Agent), ~~2:00 p.m. New York City time~~ not later than 1:00 p.m., London time, and (iii) in the case of a Swingline Loan requested by a Belgian Borrowing Subsidiary, to the Swingline Lender (with a copy to the London Agent) not later than 1:00 p.m., Brussels time, in each case on the day of ~~such~~ the proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), ~~the~~ amount and currency of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC DisbursementLoan. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the applicable Borrower by means of a credit to the general deposit ~~accounts~~ account of such Borrower ~~maintained~~ with the Swingline Lender ~~for the Swingline Loan~~ (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(e), by remittance to the ~~applicable~~ Issuing Bank) by (i) 3:00 p.m., New York City time, on the requested date of such Swingline ~~Loan~~Loan in the case of a Swingline Loan denominated in US Dollars, (ii) 4:00 p.m., Local Time, on the requested date of such Swingline Loan in the case of a Swingline Loan denominated in Sterling or Euro (other than a Swingline Loan requested by a Belgian Borrowing Subsidiary) and (iii) 4:00 p.m., Brussels time, on the requested date of such Swingline Loan in the case of a Swingline Loan requested by a Belgian Borrowing Subsidiary. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00 p.m.~~10:00 a.m., New York City time, on any Business Day require the ~~Revolving~~ Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the ~~aggregate amount~~ amounts and currencies of the Swingline ~~Loans in which Revolving Lenders will participate~~Loans. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each ~~Revolving~~ Lender, specifying in such notice ~~the~~ such Lender’s Applicable Percentage of each such Swingline Loan or ~~Swingline~~ Loans. Each ~~Revolving~~ Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of each such Swingline Loan or ~~Swingline~~ Loans. Each ~~Revolving~~ Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each ~~Revolving~~ Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section ~~2.06~~ 2.07 with respect to Loans made by such Lender (and Section ~~2.06~~ 2.07 shall apply, mutatis mutandis, to the payment obligations of the ~~Revolving Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to the Swingline Lender the amounts so received by it from the ~~Revolving~~ Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower Agent of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from ~~the Borrowers~~ any Borrower (or other ~~Person~~ party on behalf of ~~the Borrowers~~any Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the ~~Revolving~~ Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ applicable Borrower of any default in the payment thereof. (d) The ~~Parent~~ Borrower ~~may, at any time and~~ Agent may from time to time, ~~designate as additional Swingline Lenders one or~~ but in no event more ~~Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement~~than once during any fiscal quarter, ~~which shall be in form and substance reasonably satisfactory~~ upon ten Business Days’ prior written notice to the Administrative Agent and the ~~Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated~~ Swingline Lender, ~~and, from~~ increase one Swingline Sublimit and simultaneously decrease the other Swingline Sublimit in amounts that will result in the sum of the US Dollar Swingline Sublimit and the Sterling/Euro Swingline Sublimit remaining unchanged after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof giving effect to such ~~Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice~~ increase and ~~(ii) the fifth Business Day following the date of the delivery thereof~~decrease; provided that no such ~~termination~~ adjustment shall ~~become effective until and unless~~ be made that would result in (i) the US Dollar Swingline Exposure exceeding the US Dollar Swingline Sublimit or (ii) the Sterling/Euro Swingline Exposure exceeding the Sterling/Euro Swingline Sublimit. Any such notice shall set forth the amount of the increase or decrease in each Swingline Sublimit and the date on which such ~~Swingline Lender shall have been reduced~~ adjustment is requested to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loansbecome effective.

Appears in 1 contract

Samples: Credit Agreement (American Standard Companies Inc)

Swingline Loans. (a) ~~Subject~~ The Administrative Agent, the Swingline Lender and the Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the Revolving Lenders and in the amount requested, same day funds to the Borrowers, on the date of the applicable Borrowing to the Funding Account(s) (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05(a) is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Swingline Loan shall be subject to all the terms and conditions ~~set forth herein (including Section 2.22)~~applicable to other ABR Loans funded by the Revolving Lenders, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04,~~ except that all payments thereon shall be payable to the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding solely for its ~~Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the~~ own account. The aggregate amount of Swingline Loans outstanding ~~exceeding~~ at any time shall not exceed $5,000,000. All Swingline ~~Sublimit; provided that the Swingline Lender~~ Loans shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline LoansABR Borrowings. (b) ~~To request a Swingline Loan,~~ Upon the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case making of a Swingline Loan ~~made~~ (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to ~~finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of~~ such Swingline Loan~~. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m.~~), New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall ~~comply with its obligation under this paragraph~~ be deemed, without further action by ~~wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis~~any party hereto, to ~~the payment obligations of the Revolving Lenders pursuant to this paragraph),~~ have unconditionally and ~~the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it~~ irrevocably purchased from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, without recourse or warranty, an undivided interest and ~~thereafter~~ participation in such Swingline Loan in proportion to its Applicable Percentage of the ~~Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason~~Revolving Commitment. The ~~purchase of participations in a~~ Swingline ~~Loan pursuant to this paragraph shall not relieve~~ Lender or the ~~Borrowers of any default in the payment thereof. (d) The Parent Borrower~~ Administrative Agent may, at any ~~time and from time to~~ time, ~~designate as additional Swingline Lenders one or more~~ require the Revolving Lenders ~~that agree~~ to ~~serve in such capacity as provided below~~fund their participations. ~~The acceptance by a~~ From and after the date, if any, on which any Revolving Lender is required to fund its participation in any Swingline Loan purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of ~~an appointment~~ all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Swingline Loan. (c) The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a “Settlement”) with the Revolving Lenders on at least a weekly basis or on any date that the Administrative Agent elects, by notifying the Revolving Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon Chicago time on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Revolving Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may designate, not later than 2:00 p.m., Chicago time, on such Settlement Date. Settlements may occur during the existence of a ~~Swingline Lender hereunder shall be evidenced by an agreement, which shall be~~ Default and whether or not the applicable conditions precedent set forth in ~~form and substance reasonably satisfactory~~ Section 4.02 have then been satisfied. Such amounts transferred to the Administrative Agent ~~and~~ shall be applied against the ~~Parent Borrower~~amounts of the Swingline Lender’s Swingline Loans and, ~~executed by the Borrowers~~together with Swingline Lender’s Applicable Percentage of such Swingline Loan, shall constitute Revolving Loans of such Revolving Lenders, respectively. If any such amount is not transferred to the Administrative Agent ~~and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such~~ by any Revolving Lender ~~shall have all~~ on such Settlement Date, the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall ~~have been reduced~~ be entitled to ~~zero. Notwithstanding the effectiveness of any~~ recover from such ~~termination~~Lender on demand such amount, ~~the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement~~ together with ~~respect to Swingline Loans made by it prior to such termination~~interest thereon, ~~but shall not make any additional Swingline Loans~~as specified in Section 2.07.

Appears in 1 contract

Samples: Credit Agreement (Clarus Corp)

Swingline Loans. (a) ~~Subject~~ The Administrative Agent, the Swingline Lender and the Revolving USD Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the applicable Revolving USD Lenders and in the amount requested, same day funds to the Borrower, on the applicable Borrowing date to the Funding Account(s) (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05(a) is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Swingline Loan shall be subject to all the terms and conditions ~~set forth herein (including Section 2.22)~~applicable to other ABR Loans funded by the Revolving USD Lenders, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04,~~ except that all payments thereon shall be payable to the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding solely for its ~~Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the~~ own account. The aggregate amount of Swingline Loans outstanding ~~exceeding Swingline Sublimit; provided that the~~ at any time shall not exceed $5,000,000. The Swingline Lender shall ~~be required to~~ not make a any Swingline Loan if the requested Swingline Loan exceeds Revolving USD Loan Availability (before giving effect to ~~refinance an outstanding~~ such Swingline Loan). ~~Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow~~ All Swingline ~~Loans~~Loans shall be ABR Borrowings. (b) ~~To request~~ Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline Loan) each Revolving USD Lender shall be deemed, ~~the Parent Borrower shall notify the Administrative Agent~~ without further action by any party hereto, to have unconditionally and irrevocably purchased from the Swingline Lender of without recourse or warranty, an undivided interest and participation in such ~~request (i) by telephone (confirmed~~ Swingline Loan in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount proportion to its Applicable Percentage of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving ~~Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement~~USD Commitment. The Swingline Lender ~~shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or~~may, ~~in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City~~ at any time, ~~on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day~~ require the Revolving USD Lenders to ~~acquire participations~~ fund their participations. From and after the date, if any, on ~~such Business Day~~ which any Revolving USD Lender is required to fund its participation in ~~all or a portion of the~~ any Swingline ~~Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice~~Loan purchased hereunder, the Administrative Agent ~~will give notice thereof~~ shall promptly distribute to ~~each Revolving Lender, specifying in~~ such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of ~~such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges~~ all payments of principal and ~~agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute~~ interest and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the all proceeds of ~~a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts~~ Collateral received by the Administrative Agent ~~shall be promptly remitted by the~~ in respect of such Loan. (c) The Administrative ~~Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to~~ Agent, on behalf of the Swingline Lender, ~~as their interests may appear; provided~~ shall request settlement (a “Settlement”) with the Revolving USD Lenders on at least a weekly basis or on any date that ~~any~~ the Administrative Agent elects, by notifying the Revolving USD Lenders of such ~~payment so remitted shall be repaid to~~ requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon Indianapolis, Indiana time on the date of such requested Settlement (the “Settlement Date”). Each Revolving USD Lender (other than the Swingline ~~Lender or~~ Lender, in the case of the Swingline Loans) shall transfer the amount of such Revolving USD Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as the ~~case~~ Administrative Agent may bedesignate, ~~and thereafter to the Borrowers~~not later than 12:00 p.m., if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower mayIndianapolis, ~~at any time and from time to~~ Indiana time, ~~designate as additional Swingline Lenders one~~ on such Settlement Date. Settlements may occur during the existence of a Default and whether or ~~more Revolving Lenders that agree to serve~~ not the applicable conditions precedent set forth in ~~such capacity as provided below~~Section 4.02 have then been satisfied. ~~The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory~~ Such amounts transferred to the Administrative Agent ~~and~~ shall be applied against the ~~Parent Borrower~~amounts of the Swingline Lender’s Swingline Loans and, ~~executed by~~ together with the ~~Borrowers~~Swingline Lender’s Applicable Percentage of such Swingline Loan, shall constitute Revolving USD Loans of such Revolving USD Lenders, respectively. If any such amount is not transferred to the Administrative Agent ~~and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such~~ by any Revolving Lender ~~shall have all~~ on such Settlement Date, the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall ~~have been reduced~~ be entitled to ~~zero. Notwithstanding the effectiveness of any~~ recover such ~~termination, the terminated Swingline~~ amount on demand from such Lender ~~shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement~~ together with ~~respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~interest thereon as specified in Section 2.07.

Appears in 1 contract

Samples: Credit Agreement (Escalade Inc)

Swingline Loans. (a) ~~Subject~~ The Administrative Agent, the Swingline Lender and the Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the Revolving Lenders and in the amount requested, same day funds to the Borrowers, on the applicable Borrowing date to the Funding Account(s) (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05(a) is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Swingline Loan shall be subject to all the terms and conditions applicable to other ABR Loans funded by the Revolving Lenders, except that all payments thereon shall be payable to the Swingline Lender solely for its own account. In addition, the Borrowers hereby authorize the Swingline Lender to, and the Swingline Lender shall, subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at but without any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephonefurther written notice required), not later than ~~10:00 a.m.~~1:00 p.m., ~~New York City~~ Chicago time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on ~~the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a~~ each Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make ~~each Swingline Loan~~ available to ~~such Borrower~~ the Borrowers by means of a credit to the ~~general deposit accounts of such Borrower maintained with~~ Funding Account(s), the ~~Swingline Lender for the Swingline Loan (or, in the case~~ proceeds of a Swingline Loan ~~made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance~~ to the ~~applicable Issuing Bank) by 3:00 p.m., New York City time,~~ extent necessary to pay items to be drawn on ~~the requested date of such Swingline Loan.~~ any Controlled Disbursement Account that day (~~c) The Swingline Lender may by written~~ as determined based on notice ~~given to~~ from the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstandingAgent). ~~Such notice shall specify the~~ The aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and outstanding at any time shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverexceed $7,500,000. ~~Each Revolving~~ The Swingline Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in not make any Swingline Loan ~~acquired pursuant~~ if the requested Swingline Loan exceeds such Borrower’s Availability (before giving effect to ~~this paragraph, and thereafter payments in respect of~~ such Swingline ~~Loan~~ Loan). All Swingline Loans shall be ~~made to~~ ABR Borrowings. (b) Upon the ~~Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect~~ making of a Swingline Loan (whether before or after ~~receipt by~~ the ~~Swingline Lender of the proceeds~~ occurrence of a ~~sale~~ Default and regardless of ~~participations therein~~ whether a Settlement has been requested with respect to such Swingline Loan), each Revolving Lender shall be ~~promptly remitted~~ deemed, without further action by ~~the Swingline Lender~~ any party hereto, to ~~the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall~~ have ~~made their payments pursuant to this paragraph~~ unconditionally and ~~to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to~~ irrevocably purchased from the Swingline Lender or the Administrative Agent, as the case may be, without recourse or warranty, an undivided interest and ~~thereafter~~ participation in such Swingline Loan in proportion to its Applicable Percentage of the ~~Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason~~Revolving Commitment. The ~~purchase of participations in a~~ Swingline ~~Loan pursuant to this paragraph shall not relieve~~ Lender or the ~~Borrowers of any default in the payment thereof. (d) The Parent Borrower~~ Administrative Agent may, at any ~~time and from time to~~ time, ~~designate as additional Swingline Lenders one or more~~ require the Revolving Lenders ~~that agree~~ to ~~serve in such capacity as provided below~~fund their participations. ~~The acceptance by a~~ From and after the date, if any, on which any Revolving Lender is required to fund its participation in any Swingline Loan purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of ~~an appointment~~ all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Loan. (c) The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a “Settlement”) with the Revolving Lenders on at least a weekly basis or on any date that the Administrative Agent elects, by notifying the Revolving Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than noon Chicago time on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Revolving Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may designate, not later than 2:00 p.m., Chicago time, on such Settlement Date. Settlements may occur during the existence of a ~~Swingline Lender hereunder shall be evidenced by an agreement, which shall be~~ Default and whether or not the applicable conditions precedent set forth in ~~form and substance reasonably satisfactory~~ Section 4.02 have then been satisfied. Such amounts transferred to the Administrative Agent ~~and~~ shall be applied against the ~~Parent Borrower~~amounts of the Swingline Lender’s Swingline Loans and, ~~executed by the Borrowers~~together with Swingline Lender’s Applicable Percentage of such Swingline Loan, shall constitute Revolving Loans of such Revolving Lenders, respectively. If any such amount is not transferred to the Administrative Agent ~~and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such~~ by any Revolving Lender ~~shall have all~~ on such Settlement Date, the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall ~~have been reduced~~ be entitled to ~~zero. Notwithstanding the effectiveness of any~~ recover such ~~termination, the terminated Swingline~~ amount on demand from such Lender ~~shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement~~ together with ~~respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~interest thereon as specified in Section 2.07.

Appears in 1 contract

Samples: Credit Agreement (Metalico Inc)

Swingline Loans. (a) ~~Subject~~ The Administrative Agent, the Swingline Lender and the Lenders agree that in order to facilitate the administration of this Agreement and the other Financing Documents, promptly after MK Switzerland delivers a Borrowing Request to JPMEL requesting a Borrowing to be made pursuant to this Section 2.19(a), and provided that such Borrowing Request is received by JPMEL not later than 9:30 a.m., London time, the Swingline Lender may elect to have the terms of this Section 2.19(a) apply to such Borrowing Request by advancing, on behalf of the Lenders and in the amount so requested, same day funds to MK Switzerland on the date such Borrowing Request is received to an account of MK Switzerland designated in accordance with Section 2.05 hereof (each such Loan, a “Swingline Loan”), with settlement among the Lenders as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.19(c) hereof. Each Swingline Loan shall be subject to all the terms and conditions ~~set forth herein~~ applicable to other Loans funded by the Lenders, except that (~~including Section 2.22), in reliance upon~~ i) such Swingline Loan shall accrue interest at a rate determined by reference to the ~~agreements of the other Lenders set forth in this Section 2.04,~~ Overnight LIBO Rate and (ii) all payments thereon shall be payable to the Swingline Lender ~~agrees to make~~ solely for its own account. In addition, no Swingline ~~Loans to~~ Loan shall be made if, after giving effect thereto: (i) the ~~Borrowers from time to time during the Revolving Availability Period denominated in dollars in an~~ aggregate principal amount ~~at any time~~ of the outstanding ~~that will not result~~ Swingline Loans denominated in ~~(i) subject~~ Alternative Currencies when added to ~~Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ aggregate principal amount of all other Exposure ~~of any Swingline Lender exceeding its Revolving Commitment,~~ denominated in Alternative Currencies under this Agreement would exceed the Alternative Currency Sublimit; or (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the principal amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans ~~outstanding. Such notice shall specify~~ would exceed the ~~aggregate amount~~ lesser of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), $15,000,000 and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of Availability at such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereoftime. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Michael Kors Holdings LTD)

Swingline Loans. (a) ~~Subject to~~ On the terms and subject to the conditions ~~set forth herein (including Section 2.22), in reliance~~ and relying upon the ~~agreements of the other Lenders~~ representations and warranties herein set ~~forth in this Section 2.04~~forth, the Swingline Lender ~~agrees~~ agrees, at any time and from time to time from and including the Closing Date to but excluding the earlier of the Revolving Credit Maturity Date and the termination of the Revolving Credit Commitments, in accordance with the terms hereof, to make Swingline Loans (which shall be ABR Borrowings) to the ~~Borrowers from time to time during the Revolving Availability Period denominated in dollars~~ Borrower in an aggregate principal amount at any time outstanding ~~that will~~ not ~~result in~~ to exceed the lesser of (i) ~~subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment,~~ $5,000,000 and (ii) the ~~aggregate Revolving Exposures exceeding~~ difference between (A) the lesser of (I) the aggregate Revolving ~~Commitments or~~ Credit Commitments, as the same may be reduced from time to time pursuant to Section 2.09, at such time and (~~iii~~II) the LC Exposure at such time. Each Lender's Revolving Credit Commitment shall be deemed utilized by an amount equal to such Lender's pro rata share (based upon the percentage that such Lender's Revolving Credit Commitment bears to the aggregate amount of the Revolving Loan Commitments on such date) of each Swingline ~~Loans outstanding exceeding~~ Loan. Immediately upon the making of each Swingline ~~Sublimit; provided that~~ Loan, the Swingline Lender shall be ~~required~~ deemed to ~~make a Swingline Loan~~ have sold and transferred to ~~refinance an outstanding Swingline Loan. Within the foregoing limits~~ each Lender, and ~~subject~~ each Lender shall be deemed to ~~the terms~~ have purchased and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by received from the Swingline Lender, ~~2:00 p.m. New York City time on~~ in each case irrevocably and without any further action by any party, an undivided interest and participation in such Swingline Loan and the ~~day~~ Obligations of the Borrower under this Agreement in respect thereof in an amount equal to the pro rata share (determined as aforesaid) of such ~~proposed~~ Swingline Loan. Each ~~such notice~~ Swingline Loan shall be ~~irrevocable~~ in a principal amount that is an integral multiple of $500,000 and shall ~~specify the requested date (which shall~~ be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made ~~such LC Disbursement. The Swingline Lender shall make each Swingline Loan~~ available to ~~such~~ the Borrower by means of a credit to the general deposit ~~accounts~~ account of the Borrower by 3:00 p.m. on the date such Swingline Loan is requested to be made pursuant to paragraph (b) below. Within the limits set forth in the first sentence of this paragraph, the Borrower ~~maintained with~~ may borrow, pay or prepay and reborrow Swingline Loans on or after the Closing Date and prior to the Revolving Credit Maturity Date on the terms and subject to the conditions and limitations set forth herein. (b) The Borrower shall give the Swingline Lender ~~for the Swingline Loan~~ telephonic, written or telecopy notice (~~or,~~ in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such telephonic notice, ~~the Administrative Agent will give notice thereof to each Revolving Lender, specifying in~~ such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender confirmed in writing or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.by

Appears in 1 contract

Samples: Credit Agreement (Ta Operating Corp)

Swingline Loans. (ai) ~~Subject~~ The Administrative Agent, the US Swingline Lender and the Facility A Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing under Facility A on behalf of the Company, the US Swingline Lender may elect to have the terms of this Section 2.05(a)(i) apply to such Borrowing Request by advancing, on behalf of the Facility A Lenders and in the amount so requested, same day funds to the Company on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “Facility A Swingline Loan”), with settlement among them as to the Facility A Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility A Swingline Loan shall be subject to all the terms and conditions ~~set forth herein (including Section 2.22)~~applicable to other ABR Loans funded by the Facility A Lenders, ~~in reliance upon~~ except that all payments thereon shall be payable to the ~~agreements of the other Lenders set forth in this Section 2.04, the~~ US Swingline Lender ~~agrees to make~~ solely for its own account. In addition, no Facility A Swingline ~~Loans to~~ Loan shall be made if, after giving effect thereto: (A) the ~~Borrowers from time to time during the Revolving Availability Period denominated in dollars in an~~ aggregate principal amount ~~at any time~~ of outstanding ~~that will not result in~~ Facility A Swingline Loans would exceed the Facility A Swingline Sublimit; (iB) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ Facility A Revolving Exposure of any ~~Swingline~~ Lender ~~exceeding its Revolving~~ would exceed such Lender’s Facility A Commitment, ; (iiC) the ~~aggregate~~ total Revolving ~~Exposures exceeding~~ Exposure would exceed the lesser of (x) the sum of the aggregate amount of the Commitments and (y) the Aggregate Borrowing Base; or (D) the total Facility A Revolving ~~Commitments or~~ Exposure would exceed the lesser of (~~iii~~x) the aggregate amount of the Facility A Commitments and (y) the US Borrowing Base; subject, in the case of each of clause (A), (C) and (D) above, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.04. (ii) The Administrative Agent, the US Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing under Facility B on behalf of the Company, the US Swingline Lender may elect to have the terms of this Section 2.05(a)(ii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to the Company on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “Facility B US Swingline Loan”), with settlement among them as to the Facility B US Swingline Loans ~~outstanding exceeding~~ to take place on a periodic basis as set forth in Section 2.05(c). Each Facility B US Swingline ~~Sublimit; provided that the Swingline Lender~~ Loan shall be ~~required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and~~ subject to all the terms and conditions ~~set forth herein~~applicable to other ABR Loans funded by the Facility B Lenders, except that all payments thereon shall be payable to the ~~Borrowers may borrow~~US Swingline Lender solely for its own account. In addition, ~~prepay~~ no Facility B US Swingline Loan shall be made if, after giving effect thereto: (A) the aggregate principal amount of outstanding Facility B Swingline Loans would exceed the Facility B Swingline Sublimit; (B) the Facility B Revolving Exposure of any Lender would exceed such Lender’s Facility B Commitment; (C) the total Revolving Exposure would exceed the lesser of (x) the aggregate amount of the Commitments and ~~reborrow Swingline Loans~~(y) the Aggregate Borrowing Base; (D) the total Facility B Revolving Exposure would exceed the lesser of (x) the aggregate amount of the Facility B Commitments and (y) the Aggregate Borrowing Base minus the Facility A Revolving Exposure; or (E) the total Revolving Exposure relating to the Company would exceed the US Borrowing Base; subject, in the case of each of clause (A), (C), (D) and (E) above, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.04. (biii) ~~To request a Swingline Loan~~The European Administrative Agent, the ~~Parent~~ European Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower ~~shall notify~~ Representative requests a Eurocurrency Borrowing on behalf of any European Borrower (or the applicable European Borrower requests such Borrowing), and provided that such Eurocurrency Borrowing request is received by the European Administrative Agent and the European Swingline Lender ~~of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone),~~ not later than 10:00 a.m., ~~New York City~~ London time, orthe European Swingline Lender may elect to have the terms of this Section 2.05(a)(iii) apply to such Borrowing Request by advancing, ~~if agreed~~ on behalf of the Facility B Lenders and in the amount so requested, same day funds to the applicable European Borrower on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “European Swingline Loan”), with settlement among them as to the European Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each European Swingline Loan shall be subject to all the terms and conditions applicable to other Eurocurrency Loans funded by the Facility B Lenders, except that (i) such European Swingline ~~Lender, 2:00 p.m. New York City time on~~ Loan shall accrue interest at a rate determined by reference to the ~~day of such proposed Swingline Loan. Each such notice~~ OVERNIGHTOvernight LIBO RATERate and (ii) all payments thereon shall be ~~irrevocable and shall specify~~ payable to the ~~requested date (which~~ European Swingline Lender solely for its own account. In addition, no European Swingline Loan shall be ~~a Business Day)~~made if, after giving effect thereto: (A) the aggregate principal amount of outstanding Facility B Swingline Loans would exceed the Facility B Swingline Sublimit; (B) the Facility B Revolving Exposure of any Lender would exceed such Lender’s Facility B Commitment; (C) the total Revolving Exposure would exceed the lesser of (x) the aggregate amount of the ~~requested Swingline Loan~~ Commitments and (y) the Aggregate Borrowing Base; (D) the total Facility B Revolving Exposure would exceed the lesser of (x) if the ~~funds are not to be credited to a general deposit account~~ aggregate amount of ~~such Borrower maintained with~~ the ~~Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location~~ Facility B Commitments and ~~number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or~~ (y) in the ~~case of any ABR~~ Aggregate Borrowing Base minus the Facility A Revolving ~~Borrowing or Swingline Loan requested to finance~~ Exposure; or (E) the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit total Facility B Revolving Exposure with respect to the ~~general deposit accounts of such Borrower maintained with~~ European Borrowers would exceed the ~~Swingline Lender for the Swingline Loan (or~~European Sublimit; subject, in the case of ~~a Swingline Loan made to finance the reimbursement~~ each of ~~an LC Disbursement as provided in Section 2.05(f~~clause (A), ~~by remittance to the applicable Issuing Bank~~(C) ~~by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.~~ and (cD) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, ~~to pay~~ to the Administrative Agent’s authority, ~~for the account of the Swingline Lender~~in its sole discretion, ~~such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation~~ to ~~acquire participations in Swingline Loans~~ make Protective Advances pursuant to ~~this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including~~ the ~~occurrence and continuance~~ terms of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof2.04. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Office Depot Inc)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04~~herein, the Swingline Lender agrees to make Swingline Loans to the ~~Borrowers~~ Borrowers, from time to time during the ~~Revolving~~ Availability ~~Period denominated~~ Period, in dollars to the US Borrower or in Euros to the Netherlands Borrower, in an aggregate principal amount at any time outstanding that will not result in (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure~~ aggregate principal amount of ~~any~~ outstanding Swingline ~~Lender~~ Loans exceeding ~~its Revolving Commitment~~the USD Equivalent of $15,000,000, (ii) the ~~aggregate Revolving~~ USD Equivalent of the Aggregate Credit Exposures with respect to the Borrowers exceeding the ~~aggregate~~ sum of the total Revolving ~~Commitments or~~ Commitments, (iii) the ~~aggregate amount~~ USD Equivalent of ~~Swingline Loans outstanding~~ the total Revolving Exposures with respect to the US Borrower exceeding ~~Swingline~~ the US Borrowing Base, (iv) the USD Equivalent of the total Revolving Netherlands Exposure with respect to the Netherlands Borrower exceeding the Netherlands Borrowing Base, or (v) the USD Equivalent of the total Revolving Euro Exposures with respect to the Borrowers exceeding the Euro Sublimit.; provided that (x) the Netherlands Borrower shall not be permitted to borrow more than €7,500,000 in Swingline Loans, (y) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan, and (z) no Swingline Loans shall be made if any Lender or any Borrower has provided written notice to the Administrative Agent of the occurrence of a Default, unless such Default is waived pursuant to Section 9.02. Subject to Section 2.14, each Swingline Borrowing made in Euros shall be comprised entirely of Swingline Loans bearing interest at the Netherlands Swingline Rate. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans~~. (b)~~ . To request a Swingline Loan, the ~~Parent~~ Borrower Representative shall notify the Administrative Agent ~~and the Swingline Lender~~ of such request ~~(i)~~ by telephone (confirmed by facsimile), in ~~writing) or by facsimile (confirmed by telephone)~~the case of Swingline loans denominated in dollars, not later than ~~10:00~~ noon, Chicago time, or in the case of Swingline Loans denominated in Euros, no later than 11:00 a.m., ~~New York City~~ London time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of ~~such~~ a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day~~), the~~ ) and amount of the requested Swingline ~~Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with~~ Loan. The Administrative Agent will promptly advise the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ~~ABR Revolving Borrowing or Swingline Loan requested to finance~~ such notice received from the ~~reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement~~Borrower Representative. The Swingline Lender shall make each Swingline Loan available to ~~such Borrower~~ the Borrowers by means of a credit to the ~~general deposit accounts of~~ applicable Funding Account(s) (provided, that such ~~Borrower maintained with the Swingline Lender for the Swingline Loan (or~~credit shall instead be, in the case at the time of ~~a Swingline Loan made~~ such Borrowing full cash dominion is in effect pursuant to ~~finance~~ Article VII of the ~~reimbursement of an LC Disbursement as provided in Section 2.05(f)~~US Security Agreement, ~~by remittance~~ to the ~~applicable Issuing Bank~~Collection Account) by ~~3:00~~ 2:00 p.m., ~~New York City time~~Chicago time in the case of the US Borrower, and 11:00 a.m., London time in the case of the Netherlands Borrower, on the requested date of such Swingline Loan. (cb) The Swingline Lender may by (i) on same Business Day written notice given to the Administrative Agent not later than ~~2:00 p.m.~~11:00 a.m., ~~New York City~~ Chicago time, in the case of Swingline Loans denominated in dollars, or (ii) on ~~any~~ three Business ~~Day~~ Day’s written notice given to the Administrative Agent not later than 11:00 a.m., London time, in the case of Swingline Loans denominated in Euros, require the Revolving Lenders to acquire participations ~~on such Business Day~~ in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate dollar and/or Euro amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice ~~the~~ such Lender’s Applicable Percentage of such Swingline Loan or ~~Swingline~~ Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or ~~Swingline~~ Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ increase, reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section ~~2.06~~ 2.07 with respect to Loans made by such Lender (and Section ~~2.06~~ 2.07 shall apply, mutatis mutandis, to the payment obligations of the ~~Revolving Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower Representative of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the ~~Borrowers~~ US Borrower (or other ~~Person~~ party on behalf of ~~the Borrowers~~such Borrower) in respect of a Swingline Loan made in dollars after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as ~~the case may be, and thereafter to the Borrowers~~applicable, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ US Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ US Borrower of any default in the payment thereof. Any amounts received by the Swingline Lender from the Netherlands Borrower (or other party on behalf of such Borrower) in respect of a Swingline Loan made in Euros after receipt by the Swingline Lender of the 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 Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Netherlands Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Netherlands Borrower of any default in the payment thereof. (dc) Upon the making of a Swingline Loan (whether before or after the occurrence of a Default (which has been waived) and regardless of whether a Settlement has been requested with respect to such Swingline Loan), each Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Swingline Lender without recourse or warranty, an undivided interest and participation in such Swingline Loan in proportion to its Applicable Percentage of the Revolving Commitment. The ~~Parent Borrower~~ Swingline Lender may, at any ~~time and from time to~~ time, ~~designate as additional Swingline Lenders one or more~~ require the Revolving Lenders ~~that agree~~ to ~~serve in such capacity as provided below~~fund their participations. ~~The acceptance by a~~ From and after the date, if any, on which any Revolving Lender is required to fund its participation in any Swingline Loan purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of ~~an appointment~~ all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Loan. (d) The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a “Settlement”) with the Revolving Lenders on at least a weekly basis or on any date that the Administrative Agent elects, by notifying the Revolving Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon Chicago time, in the case of Swingline Loans denominated in dollars, or 12:00 p.m., London time, in the case of Swingline Loans denominated in Euros, on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Revolving Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may designate, not later than 2:00 p.m., Chicago time, in the case of Swingline Loans denominated in dollars, or 2:00 p.m., London time, in the case of Swingline Loans denominated in Euros, on such Settlement Date. Settlements may occur during the existence of a ~~Swingline Lender hereunder shall be evidenced by an agreement, which shall be~~ Default and whether or not the applicable conditions precedent set forth in ~~form and substance reasonably satisfactory~~ Section 4.02 have then been satisfied. Such amounts transferred to the Administrative Agent ~~and~~ shall be applied against the ~~Parent Borrower~~amounts of the Swingline Lender’s Swingline Loans with respect to the applicable Borrower and, ~~executed by the Borrowers~~together with Swingline Lender’s Applicable Percentage of such Swingline Loan, shall constitute Revolving Loans of such Revolving Lenders, respectively. If any such amount is not transferred to the Administrative Agent ~~and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such~~ by any Revolving Lender ~~shall have all~~ on such Settlement Date, the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall ~~have been reduced~~ be entitled to ~~zero. Notwithstanding the effectiveness of any~~ recover such ~~termination, the terminated Swingline~~ amount on demand from such Lender ~~shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement~~ together with ~~respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~interest thereon as specified in Section 2.07.

Appears in 1 contract

Samples: Credit Agreement (Libbey Inc)

Swingline Loans. (a) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ The Swingline Lender ~~agrees~~ is authorized by the Lenders, but is not obligated, to make Swingline Loans ~~to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount~~ at any time ~~outstanding that will not result in~~ (subject to Section 2.06(b)) up to the amount of (i) ~~subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment,~~ $10,000,000 plus (ii) the ~~aggregate Revolving Exposures exceeding~~ principal amount of any Permitted Overadvance in the aggregate ~~Revolving Commitments or (iii) the aggregate amount~~ outstanding at such time, upon a notice of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrowing from Lead Borrower ~~shall notify~~ received by the Administrative Agent and the Swingline Lender ~~of such request~~ (~~i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone)~~which notice, ~~not later than 10:00 a.m.~~at the Swingline Lender’s discretion, ~~New York City~~ may be submitted prior to 1:00 p.m., Boston time, oron the Business Day on which such Swingline Loan is requested). Swingline Loans shall be Prime Rate Loans and shall be subject to periodic settlement with the Lenders under Section 2.08. (b) Swingline Loans may be made only in the following circumstances: (A) for administrative convenience, ~~if agreed by~~ the Swingline Lender may, but is not obligated to, make Swingline Loans in reliance upon the Borrowers’ actual or deemed representations under Section 4.02, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances. If the conditions for borrowing under Section 4.02 cannot be fulfilled, the Required Lenders may direct the Swingline Lender to, and the Swingline Lender thereupon shall, cease making Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9.02 hereof. Unless the Required Lenders so direct the Swingline Lender, ~~2:00 p.m. New York City time on~~ the ~~day of such proposed~~ Swingline ~~Loan~~Lender may, but is not obligated to, continue to make Swingline Loans notwithstanding that the conditions for borrowing under Section 4.02 cannot be fulfilled. ~~Each such notice~~ No Swingline Loans shall be ~~irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x~~made pursuant to this Section 2.06(b) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided limitation set forth in Section ~~2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of~~ 2.01(a)(i) would be exceeded as a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment result thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Trans World Entertainment Corp)

Swingline Loans. (a) ~~Subject~~ The Administrative Agent, the Swingline Lender and the Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower requests a CBFR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the Revolving Lenders and in the amount requested, same day funds to the Borrower on the date of the applicable Borrowing to the Funding Account (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05 (a) is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Swingline Loan shall be subject to all the terms and conditions ~~set forth herein (including Section 2.22)~~applicable to other CBFR Loans funded by the Revolving Lenders, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04,~~ except that all payments thereon shall be payable to the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding solely for its ~~Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the~~ own account. The aggregate amount of Swingline Loans outstanding ~~exceeding Swingline Sublimit; provided that the~~ at any time shall not exceed $10,000,000. The Swingline Lender shall ~~be required to~~ not make a any Swingline Loan if the requested Swingline Loan exceeds Availability (before or after giving effect to ~~refinance an outstanding~~ such Swingline Loan). ~~Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow~~ All Swingline ~~Loans~~Loans shall be CBFR Borrowings. (b) ~~To request~~ Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline Loan~~, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone~~), ~~not later than 10:00 a.m.~~each Revolving Lender shall be deemed, ~~New York City time~~without further action by any party hereto, ~~or, if agreed by~~ to have unconditionally and irrevocably purchased from the Swingline Lender, ~~2:00 p.m. New York City time on the day of~~ without recourse or warranty, an undivided interest and participation in such ~~proposed~~ Swingline ~~Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount~~ Loan in proportion to its Applicable Percentage of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving ~~Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement~~Commitment. The Swingline Lender ~~shall make each~~ may, at any time, require the Revolving Lenders to fund their participations. From and after the date, if any, on which any Revolving Lender is required to fund its participation in any Swingline Loan ~~available~~ purchased hereunder, the Administrative Agent shall promptly distribute to such ~~Borrower~~ Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by ~~means of a credit to~~ the ~~general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or,~~ Administrative Agent in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date respect of such Swingline Loan. (c) The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a “Settlement”) with the Revolving Lenders on at least a weekly basis or on any date that the Administrative Agent elects, by notifying the Revolving Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon, Chicago time on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender ~~may by written notice given~~ (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Revolving Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may designate, not later than 2:00 p.m., ~~New York City~~ Chicago time, on ~~any Business Day require~~ such Settlement Date. Settlements may occur during the ~~Revolving Lenders~~ existence of a Default and whether or not the applicable conditions precedent set forth in Section 4.02 have then been satisfied. Such amounts transferred to ~~acquire participations on such Business Day in all or a portion~~ the Administrative Agent shall be applied against the amounts of the Swingline ~~Loans outstanding. Such notice shall specify the aggregate amount of~~ Lender’s Swingline Loans ~~in which Revolving Lenders will participate. Promptly upon receipt of such notice~~and, ~~the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the~~ together with Swingline Lender’s Applicable Percentage of such Swingline ~~Loan or Swingline Loans. Each~~ Loan, shall constitute Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Loans of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders, respectively. ~~The Administrative Agent shall notify the Borrowers of~~ If any ~~participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of~~ such ~~Swingline Loan shall be made~~ amount is not transferred to the Administrative Agent ~~and not to the Swingline Lender. Any amounts received~~ by any Revolving Lender on such Settlement Date, the Swingline Lender ~~from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein~~ shall be ~~promptly remitted by the Swingline~~ entitled to recover from such Lender ~~to the Administrative Agent; any~~ on demand such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lenderamount, together with interest thereon, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations specified in ~~a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof~~Section 2.07. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Omnova Solutions Inc)

Swingline Loans. In order to reduce the frequency of transfers of funds from Lenders to Agent for making Revolving Credit Loans and for so long as no Default or Event of Default exists, Agent shall be permitted (abut not required) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees~~ to make ~~Swingline~~ Revolving Credit Loans to ~~the Borrowers from time~~ U.S. Borrower upon request by Borrower Representative (such Revolving Credit Loans to ~~time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding~~ be designated as “Swingline Loans”) provided that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding ~~exceeding Swingline Sublimit~~at any time will not (i) exceed $5,000,000; ~~provided that~~ (ii) when added to the ~~Swingline Lender shall be required~~ principal amount of Agent’s other Revolving Credit Loans then outstanding plus Agent’s Revolving Loan Percentage of the LC Amount, exceed Agent’s Revolving Credit Commitment; or (iii) when added to ~~make a Swingline Loan to refinance an~~ the principal amount of all other Revolving Credit Loans then outstanding ~~Swingline Loan~~plus the LC Amount, exceed the U.S. Borrowing Base. Within the foregoing ~~limits and subject to the terms and conditions set forth herein~~limits, ~~the Borrowers~~ U.S. Borrower may borrow, ~~prepay~~ repay and reborrow Swingline Loans. . All Swingline Loans shall be treated as Revolving Credit Loans for purposes of this Agreement, except that (a) all Swingline Loans shall be Base Rate Revolving Portions and (b) ~~To request~~ notwithstanding anything herein to the contrary (other than as set forth in the next succeeding sentence), all principal and interest paid with respect to Swingline Loans shall be for the sole account of Agent in its capacity as the lender of Swingline Loans. Notwithstanding the foregoing, not more than 2 Business Days after (1) Lenders receive notice from Agent that a Swingline ~~Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender~~ Loan has been advanced in respect of ~~such request (i) by telephone (confirmed in writing)~~ a drawing under a Letter of Credit or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, LC Guaranty or (y2) in any other circumstance, demand is made by Agent during the ~~case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement~~ continuance of an ~~LC Disbursement as provided in Section 2.05(f)~~Event of Default, ~~the identity of the Issuing Bank that made such LC Disbursement. The Swingline~~ each Lender shall ~~make~~ irrevocably and unconditionally purchase and receive from Agent, without recourse or warranty from Agent, an undivided interest and participation in each Swingline Loan ~~available~~ to the extent of such Lender’s Revolving Loan Percentage thereof, by paying to Agent, in same day funds, an amount equal to such ~~Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline~~ Lender’s Revolving Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date Percentage of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Loan Agreement (Katy Industries Inc)

Swingline Loans. (a) The Administrative Agent, the U.S. Swingline Lender and the U.S. Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing on behalf of any U.S. Borrower, the U.S. Swingline Lender may in its discretion (but shall not be obligated to) elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the U.S. Revolving Lenders and in the amount requested, same day funds to the U.S. Borrowers, on the applicable Borrowing date to the Funding Account(s) of U.S. Borrowers (each such Loan made solely by the U.S. Swingline Lender pursuant to this Section 2.05(a) is referred to in this Agreement as a “U.S. Swingline Loan”), with settlement among them as to the U.S. Swingline Loans to take place on a periodic basis as set forth in Section 2.05(f). Each U.S. Swingline Loan shall be subject to all the terms and conditions applicable to other ABR Loans funded by the U.S. Revolving Lenders, except that all payments thereon shall be payable to the U.S. Swingline Lender solely for its own account. The aggregate amount of U.S. Swingline Loans outstanding at any time shall not exceed $25,000,000. The U.S. Swingline Lender shall not make any U.S. Swingline Loan if the requested U.S. Swingline Loan would cause (x) U.S. Availability to be less than zero or (y) Aggregate Availability to be less than zero. All U.S. Swingline Loans shall be ABR Borrowings. (b) The Administrative Agent, the Canadian Swingline Lender and the Canadian Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests a CBR Borrowing or a CPR Borrowing on behalf of the Canadian Borrower, the Canadian Swingline Lender may in its discretion (but shall not be obligated to) elect to have the terms of this Section 2.05(b) apply to such Borrowing Request by advancing, on behalf of the Canadian Revolving Lenders and in the amount requested, same day funds to the Canadian Borrower, on the applicable Borrowing date to the Funding Account(s) of Canadian Borrower (each such Loan made solely by the Canadian Swingline Lender pursuant to this Section 2.05(b) is referred to in this Agreement as a “Canadian Swingline Loan”), with settlement among them as to the Canadian Swingline Loans to take place on a periodic basis as set forth in Section 2.05(f). Each Canadian Swingline Loan shall be subject to all the terms and conditions applicable to other CBR Loans or CPR Loans, as applicable, funded by the Canadian Revolving Lenders, except that all payments thereon shall be payable to the Canadian Swingline Lender solely for its own account. The aggregate amount of Canadian Swingline Loans which shall be part of the maximum amount of U.S. Swingline Loan and not in addition to outstanding at any time shall not exceed $5,000,000. The Canadian Swingline Lender shall not make any Canadian Swingline Loan if the requested Canadian Swingline Loan would cause (x) Canadian Availability to be less than zero or (y) Aggregate Availability to be less than zero. All Canadian Swingline Loans shall be CBR Borrowings or CPR Borrowings. (c) Each Borrowing of Swingline Loans may be made upon the Borrower Representative’s irrevocable request to the Swingline Lender and the Administrative Agent, which may be given by telephone. Each such request must be received by the Swingline Lender and the Administrative Agent not later than 12:00 p.m., Chicago time, on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $250,000 or a whole multiple of $100,000 in excess thereof and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic request must be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a written Borrowing Request. Promptly after receipt by the Swingline Lender of any telephonic Borrowing Request, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Borrowing Request and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Subject to the terms and conditions ~~set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04~~hereof, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii)will, the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., ~~New York City~~ Chicago time, on the borrowing date specified in such Borrowing Request, make the amount of its Swingline Loan available to the Borrowers. (d) Upon the making of a U.S. Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such U.S. Swingline Loan), each U.S. Revolving Lender shall be deemed, without further action by any ~~Business Day~~ party hereto, to have unconditionally and irrevocably purchased from the U.S. Swingline Lender, without recourse or warranty, an undivided interest and participation in such U.S. Swingline Loan in proportion to its Applicable Percentage of the U.S. Revolving Commitment. The U.S. Swingline Lender or the Administrative Agent may, at any time, require the U.S. Revolving Lenders to ~~acquire participations~~ fund their participations. From and after the date, if any, on ~~such Business Day~~ which any U.S. Revolving Lender is required to fund its participation in ~~all or a portion of the~~ any U.S. Swingline ~~Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice~~Loan purchased hereunder, the Administrative Agent ~~will give notice thereof~~ shall promptly distribute to ~~each~~ such U.S. Revolving Lender, ~~specifying~~ such U.S. Revolving Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such U.S. Swingline Loan. (e) Upon the making of a Canadian Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Canadian Swingline Loan), each Canadian Revolving Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Canadian Swingline Lender, without recourse or warranty, an undivided interest and participation in such ~~notice~~ Canadian Swingline Loan in proportion to its Applicable Percentage of the Canadian Revolving Commitment. The Canadian Swingline Lender or the Administrative Agent may, at any time, require the Canadian Revolving Lenders to fund their participations. From and after the date, if any, on which any Canadian Revolving Lender is required to fund its participation in any Canadian Swingline Loan purchased hereunder, the Administrative Agent shall promptly distribute to such Canadian Revolving Lender, such Canadian Revolving Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Canadian Swingline Loan. (f) The Administrative Agent, on behalf of the U.S. Swingline Lender or the Canadian Swingline Lender, as applicable, shall request settlement (a “Settlement”) with the U.S. Revolving Lenders or Canadian Revolving Lenders, as applicable, on at least a weekly basis or on any more frequent date that the Administrative Agent, elects, by notifying the applicable Revolving Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 12:00 Noon Chicago time on the date of such requested Settlement (the “Settlement Date”). With respect to Settlements involving U.S. Loans, each U.S. Lender (other than the U.S. Swingline Lender, in the case of the U.S. Swingline Loans) shall transfer in U.S. Dollars the amount of such U.S. Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to an account of the Administrative Agent as the Administrative Agent may designate, not later than 11:00 a.m., Chicago time, on such Settlement Date. With respect to Settlements involving Canadian Loans, each Canadian Revolving Lender (other than the Canadian Swingline Lender, in the case of the Canadian Swingline Loans) shall transfer, in the currency in which the applicable Loan was denominated, the amount of such Canadian Revolving Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to an account of the Administrative Agent as the Administrative Agent may designate, not later than 11:00 a.m., Chicago time, on such Settlement Date. Settlements may occur during the existence of a Default and whether or not the applicable conditions precedent set forth in Section 4.02 have then been satisfied. Such amounts transferred to the Administrative Agent shall be applied against the amounts of the Swingline Lender’s Swingline Loans and, together with Swingline Lender’s Applicable Percentage of such Swingline ~~Loan or Swingline Loans. Each~~ Loan, shall constitute Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Loans of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders, respectively. ~~The Administrative Agent shall notify the Borrowers of~~ If any ~~participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of~~ such ~~Swingline Loan shall be made~~ amount is not transferred to the Administrative Agent ~~and not to the Swingline Lender. Any amounts received~~ by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowerson such Settlement Date, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such applicable Swingline Lender shall ~~have been reduced~~ be entitled to ~~zero. Notwithstanding the effectiveness of any~~ recover such ~~termination, the terminated Swingline~~ amount on demand from such Lender ~~shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement~~ together with ~~respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~interest thereon as specified in Section 2.07.

Appears in 1 contract

Samples: Credit Agreement (Nine Energy Service, Inc.)

Swingline Loans. ~~(a)~~ Subject to the terms and conditions set forth ~~herein (including Section 2.22)~~herein, each Swingline Lender, in reliance ~~upon~~ on the agreements of the ~~other~~ Lenders set forth in this ~~Section 2.04~~Section, ~~the Swingline Lender~~ agrees to make Swingline Loans in Dollars to the ~~Borrowers~~ Borrower from time to time on any Business Day during the ~~Revolving~~ Availability ~~Period denominated in dollars~~ Period, in an aggregate principal amount not to exceed at any time outstanding ~~that will not result in~~ such Lender’s Swingline Commitment; provided that, after giving effect to any Swingline Loan, (i) ~~subject to Section 9.04(b)(ii), the Applicable Fronting~~ no Lender’s Credit Exposure ~~of any Swingline Lender exceeding its Revolving~~ shall exceed such Lender’s Commitment, (ii) the ~~aggregate Revolving~~ sum of the total Credit Exposures ~~exceeding~~ shall not exceed the ~~aggregate Revolving Commitments or~~ Maximum Loan Amount and (iii) the aggregate amount of all outstanding Swingline Loans ~~outstanding exceeding~~ shall not exceed the Swingline Sublimit; provided further that ~~the~~ no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers~~ Borrower may borrow, prepay and reborrow Swingline Loans~~. (b) To request a Swingline Loan,~~ . Immediately upon the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case making of a Swingline Loan ~~made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f)~~by a Swingline Lender, ~~by remittance to the applicable Issuing Bank) by 3:00 p.m.~~each Lender shall be deemed to, ~~New York City time~~and hereby irrevocably and unconditionally agrees to, ~~on the requested date of~~ purchase from such Swingline ~~Loan. (c) The Swingline~~ Lender ~~may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day~~ a participation in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan ~~or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above,~~ in an amount equal to ~~pay to the Administrative Agent, for the account of the Swingline Lender,~~ such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect amount of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereofLoan. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (American Realty Capital Global Trust II, Inc.)

Swingline Loans. (a) ~~Subject~~ []The Swingline Lender is authorized by the Lenders and shall, subject to the ~~terms~~ provisions of this Section, make Swingline Loans up to $25,000,000 in the aggregate outstanding at any time consisting only of Prime Rate Loans, upon a notice of Borrowing received by the Agent and ~~conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04,~~ the Swingline Lender ~~agrees~~ (which notice, at the Swingline Lender[']’s discretion, may be submitted prior to ~~make~~ 1:00 p.m. on the Business Day on which such Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(iiLoan is requested), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall not be ~~required~~ obligated to make a any Swingline Loan in its reasonable discretion if any Lender at such time is a Defaulting Lender, unless the Swingline Lender has entered into satisfactory arrangements with the Borrowers or such Lender to ~~refinance an outstanding~~ eliminate the Swingline Lender's Fronting Exposure with respect to such Swingline Loan. ~~Within the foregoing limits and~~ Swingline Loans shall be subject to periodic settlement with the ~~terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans~~Lenders under Section 2.7 below. (b) ~~To request a~~ []Swingline ~~Loan~~Loans may be made only in the following circumstances: (A) for administrative convenience, the ~~Parent~~ Swingline Lender shall, at the Lead Borrower's request, make Swingline Loans in reliance upon the Borrowers' actual or deemed representations under Section 4.2, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances. If the conditions for borrowing under Section 4.2 cannot be fulfilled, the Lead Borrower shall ~~notify~~ give immediate notice thereof to the ~~Administrative~~ Agent and the Swingline Lender ~~of such request~~ (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph“Noncompliance Notice”), and the ~~Administrative~~ Agent shall promptly ~~remit to~~ provide each Lender with a copy of the Noncompliance Notice. If the conditions for borrowing under Section 4.2 cannot be fulfilled, the Required Lenders may direct the Swingline Lender ~~the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph~~to, and ~~thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by~~ the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lenderthereupon shall, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of cease making Swingline Loans ~~hereunder~~(other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (GameStop Corp.)

Appears in 1 contract

Samples: Credit Agreement (Time Warner Inc/)

Swingline Loans. (a) Subject to the terms and conditions ~~set forth herein (including Section 2.22)~~of this Agreement, Bank One in ~~reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender~~ its individual capacity agrees to make ~~Swingline Loans to the Borrowers~~ at any time and from time to time ~~during~~ after the initial Borrowing Date and prior to the Swingline Expiry Date swingline loans to Borrower ("Swingline Loans"), which Swingline Loans (i) shall be made and maintained as Prime Rate Loans, (ii) shall be denominated in U.S. Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iv) shall not exceed in aggregate principal amount at any one time outstanding, when combined with the aggregate principal amount of all Revolving Credit Loans then outstanding, the Revolving ~~Availability Period denominated~~ Credit Loan Commitments and (v) shall not exceed in ~~dollars in an~~ aggregate principal amount at any time outstanding ~~that will not result~~ the lesser of (y) the Borrowing Base (determined as of the most recent month end or, if Borrower elects to provide an interim Borrowing Base Certificate pursuant to subsection 6.4 hereof, as of the date stated in such Borrowing Base Certificate) minus the sum of (~~i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii~~1) the aggregate ~~Revolving Exposures exceeding~~ principal amount of undrawn and drawn Standby L/Cs, exclusive of the ~~aggregate Revolving Commitments or~~ amount of Standby L/Cs issued for the purpose of satisfying bonding requirements, then outstanding, (~~iii~~2) the aggregate principal amount of undrawn and drawn Guaranteed HNB Joint Ventures Letters of Credit, exclusive of the amount of Guaranteed HNB Joint Ventures Letters of Credit issued for the purpose of satisfying bonding requirements, then outstanding, and (3) the aggregate principal amount of all Revolving Credit Loans then outstanding, or (z) the Maximum Swingline ~~Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to~~ Amount. Bank One will not make a Swingline Loan ~~to refinance~~ after it has received written notice from Borrower or the Required Banks stating that a Default or an ~~outstanding Swingline Loan. Within~~ Event of Default exists until such time as Bank One shall have received a written notice of (i) rescission of such notice from the ~~foregoing limits and subject to~~ party or parties originally delivering the ~~terms and conditions set forth herein~~same or (ii) a waiver of such Default or Event of Default, as required by the ~~Borrowers may borrow, prepay and reborrow Swingline Loans~~Credit Agreement. (b) ~~To request a Swingline Loan, the Parent~~ Borrower shall ~~notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing)~~ give Bank One irrevocable telephonic or ~~by facsimile (confirmed by telephone)~~written notice prior to 3:00 p.m., ~~not later than 10:00 a.m.~~Columbus, ~~New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City~~ Ohio time on the ~~day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the~~ requested ~~date (which shall be a Business Day),~~ Borrowing Date specifying the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall ~~comply with Section 2.06,~~ be in a minimum amount of $100,000 or ~~(y)~~ whole multiples of $10,000 in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursementexcess thereof. The Swingline ~~Lender shall make each Swingline Loan~~ Loans will then be made available to ~~such~~ Borrower by ~~means~~ Bank One by crediting the account of ~~a credit to the general deposit accounts of such~~ Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the ~~requested date~~ books of ~~such Swingline Loan~~Bank One. (c) The Swingline ~~Lender may~~ Loans shall be evidenced by ~~written notice given~~ a promissory note of Borrower, substantially in the form of Exhibit C attached hereto, (the "Swingline Note"), payable to the ~~Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require~~ order of Bank One and evidencing the ~~Revolving Lenders~~ obligation of Borrower to ~~acquire participations on such Business Day in all or a portion~~ pay the aggregate unpaid principal amount of the Swingline Loans ~~outstanding~~made by Bank One with interest thereon as prescribed in subsection 2.5 hereof. ~~Such notice shall specify~~ Bank One is hereby authorized to record electronically or otherwise the ~~aggregate~~ date and amount of each Swingline ~~Loans in which Revolving Lenders will participate. Promptly upon receipt~~ Loan, and the date and amount of each payment or prepayment of principal thereof, and any such ~~notice~~recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided, however, the ~~Administrative Agent will give notice thereof~~ failure of Bank One to ~~each Revolving Lender~~make any such recordation(s) shall not affect the obligation of Borrower to repay outstanding principal, ~~specifying~~ interest, or any other amount due hereunder or under the Swingline Note in ~~such notice~~ accordance with the ~~Lender’s Applicable Percentage~~ terms hereof and thereof. The Swingline Note shall (i) be dated as of ~~such~~ the date hereof, (ii) be stated to mature on the Swingline ~~Loan or Swingline Loans. Each Revolving Lender hereby absolutely~~ Expiry Date, and ~~unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent,~~ (iii) bear interest for the ~~account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges~~ period from and ~~agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,~~ including the ~~occurrence and continuance of a Default or any reduction or termination of~~ date thereof on the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in unpaid principal amount thereof from time to time outstanding at the ~~same manner~~ applicable interest rate per annum determined as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the subsection 2.5 hereof. Interest on each Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan Note shall be ~~made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers)~~ payable as specified in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereofsubsection 2.5 hereof. (d) ~~The Parent Borrower may~~Bank One, at any time and in its sole and absolute discretion, may, on behalf of Borrower (which hereby irrevocably directs Bank One to act on Borrower's behalf), request each Bank, including Bank One, to make a Revolving Credit Loan (each, a "Mandatory Borrowing") in an amount equal to such Bank's Revolving Credit Loan Commitment Percentage of the amount of the Swingline Loans (provided that each such request shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case each Bank shall make the proceeds of its Revolving Credit Loan available to Bank One on the immediately succeeding Business Day pro rata based on each Bank's Revolving Credit Loan Commitment Percentage, and the proceeds thereof shall be applied directly to repay Bank One for such outstanding Swingline Loans. Each Bank hereby irrevocably agrees to make Prime Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified by Bank One notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing amount otherwise required hereunder, (ii) whether any conditions specified in Section 5 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing, (v) any reduction in the Revolving Credit Commitments after any such Swingline Loans were made, (vi) Borrower's compliance with Borrowing Base requirements, (vii) any set-off, counterclaim, recoupment, defense or other right which such Bank may have against Bank One, Borrower or any other Person for any reason whatsoever, or (viii) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of Borrower), each Bank (other than Bank One) hereby agrees that it shall forthwith purchase from ~~time~~ Bank One (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to ~~time, designate as additional Swingline Lenders one or more Revolving Lenders that agree~~ cause the Banks to ~~serve~~ share in such ~~capacity as~~ Swingline Loans ratably based upon their respective Revolving Credit Loan Commitment Percentages, provided ~~below. The acceptance by a Revolving Lender of an appointment as a~~ that all interest payable on the Swingline ~~Lender hereunder~~ Loans shall be ~~evidenced by an agreement, which shall be in form and substance reasonably satisfactory to~~ for the ~~Administrative Agent and~~ account of Bank One until the ~~Parent Borrower, executed by~~ date the ~~Borrowers, the Administrative Agent and such designated Swingline Lender~~Mandatory Borrowing is made, and, to the extent attributable to the Mandatory Borrowing, shall be payable to the Bank making such Mandatory Borrowing from and after the ~~effective~~ date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunderMandatory Borrowing is made. (e) ~~The Parent Borrower may terminate the appointment of~~ Whenever, at any time after Bank One has received from any Bank such Bank's participating interest in a Swingline ~~Lender as a “Swingline Lender” hereunder by providing a written notice thereof~~ Loan and Bank One receives any payment on account thereof, Bank One will distribute to such ~~Swingline Lender~~Bank its participating interest in such amount (appropriately adjusted, ~~with a copy~~ in the case of interest payments, to reflect the ~~Administrative Agent. Any~~ period of time during which such ~~termination shall become effective upon~~ Bank's participating interest was outstanding and funded); provided, however, that in the ~~earlier of (i)~~ event that such ~~Swingline Lender’s acknowledging receipt of~~ payment received by Bank One is required to be returned, such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced Bank will return to ~~zero. Notwithstanding the effectiveness of~~ Bank One any ~~such termination, the terminated Swingline Lender shall remain a party hereto and shall continue~~ portion thereof previously distributed by Bank One to ~~have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~it.

Appears in 1 contract

Samples: Fifth Restated Revolving Credit Loan, Swingline Loan and Standby Letter of Credit Agreement (M I Schottenstein Homes Inc)

Swingline Loans. (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, provided no Revolving Lender shall be required to acquire a participation in a Swingline Loan to the extent same would result in such Revolving Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Revolving Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving ~~Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the ~~Borrowers~~ Borrower (or other ~~Person~~ party on behalf of the ~~Borrowers~~Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear, in each instance in accordance with Section 2.17(a); provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as ~~the case may be, and thereafter to the Borrowers~~applicable, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ Borrower of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (SmartStop Self Storage REIT, Inc.)

Swingline Loans. (a) ~~Subject~~ (i) By telephonic notice to ~~the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04,~~ the Swingline Lender ~~agrees to make Swingline Loans~~ on or before 3:00 p.m. on a Business Day (followed on such day by the delivery to the ~~Borrowers~~ Swingline Lender of a confirming Borrowing Request), any Borrower may from time to time ~~during~~ irrevocably request that Swingline Loans be made by the ~~Revolving Availability Period denominated in dollars~~ Swingline Lender in an aggregate minimum principal amount ~~at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure~~ of ~~any Swingline Lender exceeding its Revolving Commitment,~~ $500,000 and integral multiples of $100,000 or (ii) ~~the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments~~ if on any day on which a Notice of Cash Dominion is in effect or ~~(iii) the aggregate amount of~~ on which any Borrower shall have requested that Swingline Loans ~~outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall~~ be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made ~~such LC Disbursement. The Swingline Lender shall make each Swingline Loan~~ available to such Borrower ~~by means of a credit~~ pursuant to this CLAUSE (ii), Items are presented to the ~~general deposit accounts of such Borrower maintained with~~ Depositary Bank for payment against the ~~Swingline Lender for the Swingline Loan (or~~Operating Account which Items, in the ~~case of~~ aggregate, would, if paid in full, cause the Available Balance in the Operating Account on such day to be less than $0, such presentation shall be deemed to be a request by the Borrowers for a Swingline Loan ~~made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time,~~ on the ~~requested~~ date of such ~~Swingline Loan. (c) The Swingline Lender may by written notice given~~ presentation in an amount equal to the ~~Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require~~ amount (rounded upward to the ~~Revolving Lenders~~ nearest $1,000) required to ~~acquire participations on~~ cause such ~~Business Day~~ Available Balance in ~~all or a portion of~~ the Operating Account to equal $0. All Swingline Loans ~~outstanding. Such notice~~ shall ~~specify the aggregate amount of Swingline~~ be made as Base Rate Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be ~~affected by any circumstance whatsoever, including the occurrence and continuance~~ entitled to be converted into LIBO Rate Loans. The proceeds of ~~a Default or any reduction or termination of the Revolving Commitments, and that~~ each ~~such payment~~ Swingline Loan requested pursuant to CLAUSE (i) above shall be made ~~without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately~~ available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to applicable Borrower by wire transfer to the ~~Administrative Agent; any~~ Operating Account or such ~~amounts~~ other account as such Borrower shall have specified in its notice therefor by the close of business on the Business Day telephonic notice is received by the ~~Administrative Agent~~ Swingline Lender. The proceeds of each Swingline Loan deemed to be requested under CLAUSE (ii) above shall be ~~promptly remitted~~ disbursed by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender by way of direct payment of the relevant Item or by way of deposit to the ~~Administrative Agent~~Operating Account of the amount set forth in CLAUSE (ii) above, as the case may be. Notwithstanding any contrary provision set forth in this Agreement (including, ~~and thereafter~~ without limitation, SECTION 5.2.1(b)), in the event any Default or Event of Default occurs, the Swingline Lender shall, upon receipt of a Notice of Borrowing pursuant to SECTION 2.3.2(a)(i) above or, if CLAUSE (ii) above is then in effect, the presentation of an Item for payment from the Operating Account in accordance with SECTION 2.3.2(a)(ii) above, make Swingline Loans (such Swingline Loans being referred to herein as "DEFAULT LOANS") to the ~~Borrowers~~applicable Borrower (which Swingline Loans shall be refunded by the Revolving Lenders in accordance with SECTION 2.3.2(b) below regardless of the existence of such Default or Event of Default) in an aggregate principal amount which, if when taken together with the aggregate amount of all cash and ~~to the extent such payment is required~~ Cash Equivalent Investments, permitted to be ~~refunded to~~ retained by the Borrowers ~~for any reason. The purchase of participations~~ and their respective Subsidiaries in ~~a Swingline Loan pursuant to this paragraph~~ accordance with SECTION 3.1.1(d)(ii), shall not ~~relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may,~~ exceed $2,500,000 at any time ~~and from time to time~~outstanding, ~~designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender~~ the proceeds of ~~an appointment as a Swingline Lender hereunder shall be evidenced by an agreement,~~ which shall be ~~in form~~ used to pay payroll and ~~substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed~~ other operating expenses approved by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. ~~Any such termination shall become effective~~ Notwithstanding any contrary provision set forth in this Agreement, but in all respects subject to SECTION 2.1.3(c), the Swingline Lender may, in its discretion, upon ~~the earlier of (i) such Swingline Lender’s acknowledging~~ receipt of ~~such notice and~~ a Notice of Borrowing pursuant to SECTION 2.3.2(a)(i) above or, if CLAUSE (ii) above is then in effect, the ~~fifth Business Day following~~ presentation of an Item for payment from the ~~date~~ Operating Account in accordance with SECTION 2.3.2(a)(ii) above, make Swingline Loans (such Swingline Loans being referred to herein as "OVERADVANCE LOANS") to the Borrowers (which Swingline Loans shall be refunded by the Revolving Lenders in accordance with SECTION 2.3.2(b) below regardless of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness existence of any ~~such termination, the terminated Swingline Lender shall remain a party hereto and shall continue~~ Default or Event of Default) in an aggregate principal amount not to ~~have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make~~ exceed $2,500,000 at any ~~additional Swingline Loans~~time outstanding.

Appears in 1 contract

Samples: Credit Agreement (Von Hoffmann Holdings Inc)

Swingline Loans. (a) ~~Subject~~ The Swingline Lender is authorized by the Lenders and shall, subject to the ~~terms and conditions set forth herein (including Section 2.22)~~provisions of this Section, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to~~ make Swingline Loans up to $60,000,000 in the ~~Borrowers from time to time during the Revolving Availability Period denominated in dollars in an~~ aggregate ~~principal amount~~ outstanding at any time ~~outstanding that will not result in~~ (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount which requests for Borrowings of Swingline Loans ~~outstanding exceeding Swingline Sublimit; provided that the Swingline Lender~~ shall be ~~required to make~~ in minimum integrals of $250,000) consisting only of Prime Rate Loans, upon a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify notice of Borrowing received by the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which ~~shall~~ notice may be ~~a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not~~ submitted prior to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 1:00 p.m., ~~New York City~~ Boston time, on the ~~requested date of~~ Business Day on which such Swingline ~~Loan~~Loan is requested). Swingline Loans shall be subject to periodic settlement with the Lenders under Section 2.08 below. (cb) ~~The~~ Swingline Loans may be made only in the following circumstances: (A) for administrative convenience, the Swingline Lender ~~may by written~~ shall, at the Lead Borrower's request, make Swingline Loans in reliance upon the Borrowers' actual or deemed representations under Section 4.02, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances. If the conditions for borrowing under Section 4.02 cannot be fulfilled, the Lead Borrower shall give immediate notice ~~given~~ thereof to the Administrative Agent ~~not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of~~ and the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (~~and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph~~a "Noncompliance Notice"), and the Administrative Agent shall promptly ~~remit to~~ provide each Lender with a copy of the Noncompliance Notice. If the conditions for borrowing under Section 4.02 cannot be fulfilled, the Required Lenders may direct the Swingline Lender ~~the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph~~to, and ~~thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by~~ the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lenderthereupon shall, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of cease making Swingline Loans ~~hereunder~~(other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Circuit City Stores Inc)

Swingline Loans. (a) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ The Swingline Lender ~~agrees~~ is authorized by the Revolving Credit Lenders, but is not obligated, to make Swingline Loans up to ~~the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in~~ (i) ~~subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment,~~ $5,000,000 plus (ii) the ~~aggregate Revolving Exposures exceeding~~ maximum Permitted Overadvance, in the aggregate ~~Revolving Commitments or (iii) the aggregate amount~~ outstanding at any time, consisting only of ~~Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make~~ Prime Rate Loans, upon a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify notice of Borrowing received by the Administrative Agent and the Swingline Lender of (which notice may be submitted prior to 1:00 p.m., Boston time, on the Business Day on which such ~~request~~ Swingline Loan is requested). Swingline Loans shall be subject to periodic settlement with the Revolving Credit Lenders under Section 2.07 below. (i) ~~by telephone~~ Swingline Loans shall only be made in the event that there is more than one Revolving Credit Lender under this Agreement, and may be made only in the following circumstances: (~~confirmed~~ A) for administrative convenience, the Swingline Lender may, but is not obligated to, make Swingline Loans in ~~writing~~reliance upon the Borrowers’ actual or deemed representations under Section 4.02, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances. If the conditions for borrowing under Section 4.02 cannot be fulfilled, the Required Revolving Credit Lenders may direct the Swingline Lender to, and the Swingline Lender thereupon shall, cease making Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or ~~by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by~~ are waived in accordance with Section 9.02 hereof. Unless the Required Revolving Credit Lenders so direct the Swingline Lender, ~~2:00 p.m. New York City time on~~ the ~~day of such proposed~~ Swingline ~~Loan~~Lender may, but is not obligated to, continue to make Swingline Loans notwithstanding that the conditions for borrowing under Section 4.02 cannot be fulfilled. ~~Each such notice~~ No Swingline Loans shall be ~~irrevocable~~ made pursuant to this subsection (b) if the aggregate outstanding amount of the Credit Extensions and ~~shall specify~~ Swingline Loans would exceed the ~~requested date~~ lowest of (i) $50,000,000 or any other amount to which ~~shall be a Business Day)~~the Revolving Loan Credit Commitments have then been reduced by the Borrowers pursuant to Sections 2.16, and (ii) (other than with respect to Permitted Overadvances) the then amount of the Borrowing Base, and (iii) the amount of the ~~requested Swingline~~ Term Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanBase. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Wet Seal Inc)

Swingline Loans. (a) Subject to the terms and conditions ~~set forth herein (including Section 2.22)~~hereof, the Swingline Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section ~~2.04~~2.5, ~~the Swingline Lender agrees~~ to make swingline loans (each such loan, a “Swingline ~~Loans~~ Loan”) to the ~~Borrowers~~ Borrower from time to time on any Business Day during the Revolving ~~Availability~~ Commitment Period ~~denominated in dollars~~ in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit, notwithstanding the fact that ~~will not result in~~ such Swingline Loans, when aggregated with the Percentage of the outstanding amount of Revolving Loans and L/C Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Commitment; provided, however, that after giving effect to any Swingline Loan, (i) ~~subject to Section 9.04(b)(ii)~~the Total Revolving Extensions of Credit shall not exceed the Total Revolving Commitments, ~~the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment,~~ and (ii) ~~the~~ each Lender’s aggregate Revolving ~~Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount~~ Extensions of ~~Swingline Loans outstanding exceeding Swingline Sublimit; provided~~ Credit shall not exceed such Lender’s Commitment, and provided, further, that the ~~Swingline Lender~~ Borrower shall ~~be required to make a~~ not use the proceeds of any Swingline Loan to refinance an any outstanding Swingline Loan. Within the foregoing ~~limits~~ limits, and subject to the other terms and conditions ~~set forth herein~~hereof, the ~~Borrowers~~ Borrower may ~~borrow~~borrow under this Section 2.5, prepay under Section 2.7, and reborrow under this Section 2.5. Each Swingline ~~Loans. (b) To request~~ Loan shall be an ABR Loan. Immediately upon the making of a Swingline Loan, ~~the Parent Borrower~~ each Lender shall ~~notify the Administrative Agent~~ be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender of a risk participation in such ~~request (i) by telephone (confirmed~~ Swingline Loan in ~~writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed~~ an amount equal to such Lender’s Percentage multiplied by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (National Financial Partners Corp)

Swingline Loans. ~~(a)~~ Subject to the terms and conditions ~~set forth herein (including~~ hereof, including, without limitation, Section ~~2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04~~2.16, the Swingline Lender agrees to make Swingline Loans to the ~~Borrowers from time to time~~ Borrower, during the ~~Revolving Availability Period denominated in dollars~~ period from the Effective Date to, but excluding, the Swingline Maturity Date, in an aggregate principal amount at any one time outstanding ~~that will~~ up to, but not ~~result in~~ exceeding, the least of (i) ~~subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment~~$90,000,000, (ii) the aggregate ~~Revolving Exposures exceeding~~ amount of the ~~aggregate~~ Revolving Commitments of the applicable Swingline Lender then available for disbursement pursuant to the terms and conditions of this Agreement, as such amount may be increased or decreased from time to time in accordance with the terms hereof, and (iii) the aggregate amount of the Revolving Commitments of the Revolving Lenders then available for disbursement pursuant to the terms and conditions of this Agreement (the least such amount, the “Swingline ~~Loans outstanding exceeding~~ Commitment Amount”). In addition to, and not in limitations of, the foregoing limitations on Swingline ~~Sublimit; provided that the~~ Loans, no single Swingline Lender shall be required to make a any Swingline Loan if doing so would cause the outstanding amount of Swingline Loans made by such Swingline Lender to ~~refinance an~~ exceed $45,000,000, unless agreed by such Swingline Lender. If at any time the aggregate principal amount of the Swingline Loans outstanding at such time exceeds the Swingline ~~Loan~~Commitment Amount in effect at such time, the Borrower shall immediately pay the Administrative Agent for the account of the applicable Swingline Lender(s) the amount of such excess. ~~Within the foregoing limits and subject~~ Subject to the terms and conditions ~~set forth herein~~of this Agreement, the ~~Borrowers~~ Borrower may borrow, ~~prepay~~ repay and ~~reborrow~~ re-borrow Swingline ~~Loans.~~ Loans hereunder. Solely for purposes of calculation of the fee payable under Section 3.5(b), the borrowing of a Swingline Loan shall not constitute usage of any Lender’s Revolving Commitment. For all other purposes, the borrowing of a Swingline Loan shall constitute usage of the Revolving Commitments, in an amount equal to (bi) ~~To request a~~ for each Revolving Lender other than the Swingline Lender making such Swingline Loan, each such Revolving Lender’s Revolving Commitment Percentage, multiplied by the outstanding amount of such Swingline Loan and (ii) for the applicable Swingline Lender making such Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the outstanding amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Hudson Pacific Properties, L.P.)

Swingline Loans. (a) ~~Subject~~ The Administrative Agent, the Swingline Lender and the Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the Lenders and in the amount requested, same day funds to the Borrower on the applicable Borrowing date to the Funding Account (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05(a) is referred to in this Agreement as a "Swingline Loan"), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(d). Each Swingline Loan shall be subject to all the terms and conditions applicable to other ABR Loans funded by the Lenders, except that all payments thereon shall be payable to the Swingline Lender solely for its own account. In addition, the Borrower hereby authorizes the Swingline Lender to, and the Swingline Lender shall, subject to the terms and conditions set forth herein (~~including Section 2.22~~but without any further written notice required), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on each Business Day, make available to the Borrower by means of a credit to the Funding Account, the proceeds of a Swingline Loan to the extent necessary to pay items to be drawn on any ~~Business Day require~~ Controlled Disbursement Account that day (as determined based on notice from the ~~Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding~~Administrative Agent). ~~Such notice shall specify the~~ The aggregate amount of Swingline Loans ~~in which Revolving Lenders will participate~~outstanding at any time shall not exceed $7,500,000. ~~Promptly upon receipt~~ The Swingline Lender shall not make any Swingline Loan if the requested Swingline Loan exceeds Availability (before giving effect to such Swingline Loan). All Swingline Loans shall be ABR Borrowings. (b) Any provision of ~~such notice~~this Agreement to the contrary notwithstanding, at the request of the Borrower, the Administrative Agent ~~will give notice thereof~~ may in its sole discretion (but with absolutely no obligation), make Revolving Loans to ~~each~~ the Borrower, on behalf of the Lenders, in amounts that exceed Availability (any such excess Revolving Loans are herein referred to collectively as "Overadvances"); provided that, no Overadvance shall result in a Default due to Borrower's failure to comply with Section 2.01 for so long as such Overadvance remains outstanding in accordance with the terms of this paragraph, but solely with respect to the amount of such Overadvance. In addition, Overadvances may be made even if the condition precedent set forth in Section 4.02(c) has not been satisfied. All Overadvances shall constitute ABR Borrowings. The authority of the Administrative Agent to make Overadvances is limited to an aggregate amount not to exceed $5,000,000 at any time, no Overadvance may remain outstanding for more than thirty (30) days and no Overadvance shall cause any Lender's Revolving Exposure to exceed its Commitment; provided that, ~~specifying~~ the Required Lenders may at any time revoke the Administrative Agent's authorization to make Overadvances. Any such revocation must be in ~~such notice~~ writing and shall become effective prospectively upon the ~~Lender’s Applicable Percentage~~ Administrative Agent's receipt thereof. (c) Upon the making of a Swingline Loan or an Overadvance (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline Loan or ~~Swingline Loans. Each Revolving~~ Overadvance), each Lender ~~hereby absolutely and unconditionally agrees~~shall be deemed, ~~upon receipt of notice as provided above~~without further action by any party hereto, to ~~pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges~~ have unconditionally and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it irrevocably purchased from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, without recourse or warranty, an undivided interest and ~~thereafter~~ participation in such Swingline Loan or Overadvance in proportion to its Applicable Percentage of the ~~Borrowers~~total Commitments. The Swingline Lender or the Administrative Agent may, at any time, require the Lenders to fund their participations. From and after the date, if ~~and to the extent such payment~~ any, on which any Lender is required to ~~be refunded to the Borrowers for~~ fund its participation in any ~~reason. The purchase of participations in a~~ Swingline Loan ~~pursuant~~ or Overadvance purchased hereunder, the Administrative Agent shall promptly distribute to ~~this paragraph shall not relieve~~ such Lender, such Lender's Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the ~~Borrowers~~ Administrative Agent in respect of ~~any default in the payment thereof~~such Loan. (d) The ~~Parent Borrower may~~Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a "Settlement") with the Lenders on at least a weekly basis or on any date that the Administrative Agent elects, by notifying the Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 1:00 p.m., New York City time ~~and from time~~ on the date of such requested Settlement (the "Settlement Date"). Each Lender (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Lender's Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may designate, not later than 3:00 p.m., New York City time, ~~designate as additional Swingline Lenders one~~ on such Settlement Date. Settlements may occur during the existence of a Default and whether or ~~more Revolving Lenders that agree to serve~~ not the applicable conditions precedent set forth in ~~such capacity as provided below~~Section 4.02 have then been satisfied. ~~The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory~~ Such amounts transferred to the Administrative Agent ~~and~~ shall be applied against the ~~Parent Borrower~~amounts of the Swingline Lender's Swingline Loans and, ~~executed by the Borrowers~~together with Swingline Lender's Applicable Percentage of such Swingline Loan, shall constitute Revolving Loans of such Lenders, respectively. If any such amount is not transferred to the Administrative Agent ~~and~~ by any Lender on such ~~designated Swingline Lender~~Settlement Date, ~~and, from and after~~ the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall ~~have been reduced~~ be entitled to ~~zero~~recover such amount on demand from such Lender together with interest thereon as specified in Section 2.07. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.21

Appears in 1 contract

Samples: Credit Agreement (Cole Kenneth Productions Inc)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04~~herein, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the ~~Revolving~~ Availability Period ~~denominated~~ (i) in ~~dollars~~ US Dollars in an aggregate principal amount at any time outstanding that will not result in ~~(i) subject to Section 9.04(b)(ii)~~the US Dollar Swingline Exposure exceeding the US Dollar Swingline Sublimit, ~~the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment,~~ and (ii) in Sterling or Euro in an aggregate principal amount at any time outstanding that will not result in the Sterling/Euro Swingline Exposure exceeding the Sterling/Euro Swingline Sublimit, and that, in each case will not result in (x) the sum of the US Dollar Equivalent of the principal amounts of outstanding Swingline Loans exceeding US$75,000,000 or (y) the sum of the aggregate Revolving Credit Exposures and the aggregate Competitive Loan Exposures exceeding the aggregate ~~Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit~~Commitments; provided that ~~the~~ no Swingline ~~Lender~~ Loan shall be ~~required to make a Swingline Loan~~ made to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, ~~the Parent~~ a Borrower shall ~~notify the Administrative Agent and the Swingline Lender~~ give notice of such request ~~(i)~~ by telephone (confirmed by telecopy) (i) in ~~writing) or by facsimile~~ the case of a Swingline Loan denominated in US Dollars, to the Swingline Lender (~~confirmed by telephone~~with a copy to the Applicable Agent), not later than ~~10:00 a.m.~~12:00 noon, New York City time, or(ii) in the case of Swingline Loan denominated in Sterling or Euro (other than a Swingline Loan requested by a Belgian Borrowing Subsidiary), ~~if agreed by~~ to the Swingline ~~Lender~~Lender (with a copy to the Applicable Agent), ~~2:00 p.m. New York City time~~ not later than 1:00 p.m., London time, and (iii) in the case of a Swingline Loan requested by a Belgian Borrowing Subsidiary, to the Swingline Lender (with a copy to the London Agent) not later than 1:00 p.m., Brussels time, in each case on the day of ~~such~~ the proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), ~~the~~ amount and currency of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC DisbursementLoan. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the applicable Borrower by means of a credit to the general deposit ~~accounts~~ account of such Borrower ~~maintained~~ with the Swingline Lender ~~for the Swingline Loan~~ by (~~or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank~~i) by 3:00 p.m., New York City time, on the requested date of such Swingline ~~Loan~~Loan in the case of a Swingline Loan denominated in US Dollars, (ii) 4:00 p.m., Local Time, on the requested date of such Swingline Loan in the case of a Swingline Loan denominated in Sterling or Euro (other than a Swingline Loan requested by a Belgian Borrowing Subsidiary) and (iii) 4:00 p.m., Brussels time, on the requested date of such Swingline Loan in the case of a Swingline Loan requested by a Belgian Borrowing Subsidiary. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00 p.m.~~10:00 a.m., New York City time, on any Business Day require the ~~Revolving~~ Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the ~~aggregate amount~~ amounts and currencies of the Swingline ~~Loans in which Revolving Lenders will participate~~Loans. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each ~~Revolving~~ Lender, specifying in such notice ~~the~~ such Lender’s Applicable Percentage of each such Swingline Loan or ~~Swingline~~ Loans. Each ~~Revolving~~ Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of each such Swingline Loan or ~~Swingline~~ Loans. Each ~~Revolving~~ Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each ~~Revolving~~ Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the ~~Revolving Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to the Swingline Lender the amounts so received by it from the ~~Revolving~~ Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower Agent of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from ~~the Borrowers~~ any Borrower (or other ~~Person~~ party on behalf of ~~the Borrowers~~any Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the ~~Revolving~~ Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ applicable Borrower of any default in the payment thereof. (d) The ~~Parent~~ Borrower ~~may, at any time and~~ Agent may from time to time, ~~designate as additional Swingline Lenders one or~~ but in no event more ~~Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement~~than once during any fiscal quarter, ~~which shall be in form and substance reasonably satisfactory~~ upon ten Business Days’ prior written notice to the Administrative Agent and the ~~Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated~~ Swingline Lender, ~~and, from~~ increase one Swingline Sublimit and simultaneously decrease the other Swingline Sublimit in amounts that will result in the sum of the US Dollar Swingline Sublimit and the Sterling/Euro Swingline Sublimit remaining unchanged after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof giving effect to such ~~Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice~~ increase and ~~(ii) the fifth Business Day following the date of the delivery thereof~~decrease; provided that no such ~~termination~~ adjustment shall ~~become effective until and unless~~ be made that would result in (i) the US Dollar Swingline Exposure exceeding the US Dollar Swingline Sublimit or (ii) the Sterling/Euro Swingline Exposure exceeding the Sterling/Euro Swingline Sublimit. Any such notice shall set forth the amount of the increase or decrease in each Swingline Sublimit and the date on which such ~~Swingline Lender shall have been reduced~~ adjustment is requested to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loansbecome effective.

Appears in 1 contract

Samples: 364 Day Credit Agreement (American Standard Companies Inc)

Swingline Loans. (a) Subject to the terms and conditions ~~set forth herein (including Section 2.22)~~of this Agreement, Bank One in ~~reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender~~ its individual capacity agrees to make ~~Swingline Loans to the Borrowers~~ at any time and from time to time ~~during~~ after the initial Borrowing Date and prior to the Swingline Expiry Date swingline loans to Borrower ("Swingline Loans"), which Swingline Loans (i) shall be made and maintained as Prime Rate Loans, (ii) shall be denominated in U.S. Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iv) shall not exceed in aggregate principal amount at any one time outstanding, when combined with the aggregate principal amount of all Revolving Credit Loans then outstanding, the Revolving ~~Availability Period denominated~~ Credit Loan Commitments and (v) shall not exceed in ~~dollars in an~~ aggregate principal amount at any time outstanding ~~that will not result~~ the lesser of (y) the Borrowing Base (determined as of the most recent month end or, if Borrower elects to provide an interim Borrowing Base Certificate pursuant to subsection 6.4 hereof, as of the date stated in such Borrowing Base Certificate) minus the sum of (~~i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii~~1) the aggregate ~~Revolving Exposures exceeding~~ principal amount of undrawn and drawn Standby L/Cs, exclusive of the ~~aggregate Revolving Commitments or~~ amount of Standby L/Cs issued for the purpose of satisfying bonding requirements, then outstanding, (~~iii~~2) the aggregate principal amount of undrawn and drawn Guaranteed HNB Joint Ventures Letters of Credit, exclusive of the amount of Guaranteed HNB Joint Ventures Letters of Credit issued for the purpose of satisfying bonding requirements, then outstanding, and (3) the aggregate principal amount of all Revolving Credit Loans then outstanding, or (z) the Maximum Swingline ~~Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to~~ Amount. Bank One will not make a Swingline Loan ~~to refinance~~ after it has received written notice from Borrower or the Required Banks stating that a Default or an ~~outstanding Swingline Loan. Within~~ Event of Default exists until such time as Bank One shall have received a written notice of (i) rescission of such notice from the ~~foregoing limits and subject to~~ party or parties originally delivering the ~~terms and conditions set forth herein~~same or (ii) a waiver of such Default or Event of Default, as required by the ~~Borrowers may borrow, prepay and reborrow Swingline Loans~~Credit Agreement. (b) ~~To request a Swingline Loan, the Parent~~ Borrower shall ~~notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing)~~ give Bank One irrevocable telephonic or ~~by facsimile (confirmed by telephone)~~written notice prior to 3:00 p.m., ~~not later than 10:00 a.m.~~Columbus, ~~New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City~~ Ohio time on the ~~day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the~~ requested ~~date (which shall be a Business Day),~~ Borrowing Date specifying the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall ~~comply with Section 2.06,~~ be in a minimum amount of $100,000 or ~~(y)~~ whole multiples of $10,000 in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursementexcess thereof. The Swingline ~~Lender shall make each Swingline Loan~~ Loans will then be made available to ~~such~~ Borrower by ~~means~~ Bank One by crediting the account of ~~a credit to the general deposit accounts of such~~ Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the ~~requested date~~ books of ~~such Swingline Loan~~Bank One. (c) The Swingline ~~Lender may~~ Loans shall be evidenced by ~~written notice given~~ a promissory note of Borrower, substantially in the form of Exhibit C attached hereto, (the "SWINGLINE NOTE"), payable to the ~~Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require~~ order of Bank One and evidencing the ~~Revolving Lenders~~ obligation of Borrower to ~~acquire participations on such Business Day in all or a portion~~ pay the aggregate unpaid principal amount of the Swingline Loans ~~outstanding~~made by Bank One with interest thereon as prescribed in subsection 2.5 hereof. ~~Such notice shall specify~~ Bank One is hereby authorized to record electronically or otherwise the ~~aggregate~~ date and amount of each Swingline ~~Loans in which Revolving Lenders will participate. Promptly upon receipt~~ Loan, and the date and amount of each payment or prepayment of principal thereof, and any such ~~notice~~recordation shall constitute PRIMA FACIE evidence of the accuracy of the information so recorded, provided, however, the ~~Administrative Agent will give notice thereof~~ failure of Bank One to ~~each Revolving Lender~~make any such recordation(s) shall not affect the obligation of Borrower to repay outstanding principal, ~~specifying~~ interest, or any other amount due hereunder or under the Swingline Note in ~~such notice~~ accordance with the ~~Lender’s Applicable Percentage~~ terms hereof and thereof. The Swingline Note shall (i) be dated as of ~~such~~ the date hereof, (ii) be stated to mature on the Swingline ~~Loan or Swingline Loans. Each Revolving Lender hereby absolutely~~ Expiry Date, and ~~unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent,~~ (iii) bear interest for the ~~account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges~~ period from and ~~agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,~~ including the ~~occurrence and continuance of a Default or any reduction or termination of~~ date thereof on the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in unpaid principal amount thereof from time to time outstanding at the ~~same manner~~ applicable interest rate per annum determined as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the subsection 2.5 hereof. Interest on each Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan Note shall be ~~made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers)~~ payable as specified in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereofsubsection 2.5 hereof. (d) ~~The Parent Borrower may~~Bank One, at any time and in its sole and absolute discretion, may, on behalf of Borrower (which hereby irrevocably directs Bank One to act on Borrower's behalf), request each Bank, including Bank One, to make a Revolving Credit Loan (each, a "Mandatory Borrowing") in an amount equal to such Bank's Revolving Credit Loan Commitment Percentage of the amount of the Swingline Loans (provided that each such request shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case each Bank shall make the proceeds of its Revolving Credit Loan available to Bank One on the immediately succeeding Business Day PRO RATA based on each Bank's Revolving Credit Loan Commitment Percentage, and the proceeds thereof shall be applied directly to repay Bank One for such outstanding Swingline Loans. Each Bank hereby irrevocably agrees to make Prime Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified by Bank One notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing amount otherwise required hereunder, (ii) whether any conditions specified in Section 5 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing, (v) any reduction in the Revolving Credit Commitments after any such Swingline Loans were made, (vi) Borrower's compliance with Borrowing Base requirements, (vii) any set-off, counterclaim, recoupment, defense or other right which such Bank may have against Bank One, Borrower or any other Person for any reason whatsoever, or (viii) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of Borrower), each Bank (other than Bank One) hereby agrees that it shall forthwith purchase from ~~time~~ Bank One (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to ~~time, designate as additional Swingline Lenders one or more Revolving Lenders that agree~~ cause the Banks to ~~serve~~ share in such ~~capacity as~~ Swingline Loans ratably based upon their respective Revolving Credit Loan Commitment Percentages, provided ~~below. The acceptance by a Revolving Lender of an appointment as a~~ that all interest payable on the Swingline ~~Lender hereunder~~ Loans shall be ~~evidenced by an agreement, which shall be in form and substance reasonably satisfactory to~~ for the ~~Administrative Agent and~~ account of Bank One until the ~~Parent Borrower, executed by~~ date the ~~Borrowers, the Administrative Agent and such designated Swingline Lender~~Mandatory Borrowing is made, and, to the extent attributable to the Mandatory Borrowing, shall be payable to the Bank making such Mandatory Borrowing from and after the ~~effective~~ date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunderMandatory Borrowing is made. (e) ~~The Parent Borrower may terminate the appointment of~~ Whenever, at any time after Bank One has received from any Bank such Bank's assigned interest in a Swingline ~~Lender as a “Swingline Lender” hereunder by providing a written notice thereof~~ Loan and Bank One receives any payment on account thereof, Bank One will distribute to such ~~Swingline Lender~~Bank its assigned interest in such amount (appropriately adjusted, ~~with a copy~~ in the case of interest payments, to reflect the ~~Administrative Agent. Any~~ period of time during which such ~~termination shall become effective upon~~ Bank's assigned interest was outstanding and funded); provided, however, that in the ~~earlier of (i)~~ event that such ~~Swingline Lender’s acknowledging receipt of~~ payment received by Bank One is required to be returned, such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced Bank will return to ~~zero. Notwithstanding the effectiveness of~~ Bank One any ~~such termination, the terminated Swingline Lender shall remain a party hereto and shall continue~~ portion thereof previously distributed by Bank One to ~~have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~it.

Appears in 1 contract

Samples: Revolving Credit Loan Agreement (M I Schottenstein Homes Inc)

Swingline Loans. (ai) ~~Subject~~ The Administrative Agent, the Swingline Lender and the Facility A Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing under Facility A on behalf of a US Borrower, the Swingline Lender may elect to have the terms of this Section 2.05(a)(i) apply to such Borrowing Request by advancing, on behalf of the Facility A Lenders and in the amount so requested, same day funds to the applicable Borrower on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “Facility A Swingline Loan”), with settlement among them as to the Facility A Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility A Swingline Loan shall be subject to all the terms and conditions ~~set forth herein (including Section 2.22)~~applicable to other ABR Loans funded by the Facility A Lenders, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04,~~ except that all payments thereon shall be payable to the Swingline Lender ~~agrees to make~~ solely for its own account. In addition, no Facility A Swingline ~~Loans to~~ Loan shall be made if, after giving effect thereto: (A) the ~~Borrowers from time to time during the Revolving Availability Period denominated in dollars in an~~ aggregate principal amount ~~at any time~~ of outstanding ~~that will not result in~~ Facility A Swingline Loans would exceed the Facility A Swingline Sublimit; (iB) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ Facility A Credit Exposure of any ~~Swingline~~ Lender ~~exceeding its Revolving~~ would exceed such Lender’s Facility A Commitment, ; (iiC) the ~~aggregate~~ total Revolving ~~Exposures exceeding~~ Credit Exposure would exceed the lesser of (x) the sum of the aggregate amount of the Revolving Commitments or and (~~iii~~y) the Aggregate Borrowing Base; or (D) the total Facility A Credit Exposure would exceed the lesser of (x) the aggregate amount of ~~Swingline Loans outstanding exceeding Swingline Sublimit; provided that~~ the ~~Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits~~ Facility A Commitments and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the ~~case of any ABR Revolving~~ Aggregate Facility A Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (orBase; subject, in the case of ~~a Swingline Loan made to finance the reimbursement~~ each of ~~an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank~~clauses (C) ~~by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.~~ and (cD) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, ~~to pay~~ to the Administrative Agent’s authority, ~~for~~ in its sole discretion, to make Protective Advances pursuant to the ~~account~~ terms of Section 2.04. (ii) The Administrative Agent, the Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing under Facility B on behalf of a Canadian Borrower, the Swingline Lender may elect to have the terms of this Section 2.05(a)(ii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to such Canadian Borrower on the applicable Borrowing date to the Funding Account(s) (each such Loan, a “Facility B Swingline ~~Lender~~Loan”), ~~such Lender’s Applicable Percentage of such~~ with settlement among them as to the Facility B Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility B Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be ~~made without any offset~~subject to all the terms and conditions applicable to other ABR Loans funded by the Facility B Lenders, ~~abatement, withholding or reduction whatsoever. Each Revolving Lender~~ except that all payments thereon shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit be payable to the Swingline Lender ~~the amounts so received by it from the Revolving Lenders~~solely for its own account. ~~The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph~~In addition, ~~and thereafter payments in respect of such~~ no Facility B Swingline Loan shall be made to if, after giving effect thereto: (A) the ~~Administrative Agent and not to~~ aggregate principal amount of outstanding Facility B Swingline Loans would exceed the Facility B Swingline Sublimit; (B) the Facility B Credit Exposure of any Lender would exceed such Lender~~. Any amounts received by~~ ’s Facility B Commitment; (C) the ~~Swingline Lender from~~ total Revolving Credit Exposure would exceed the ~~Borrowers~~ lesser of (~~or other Person on behalf~~ x) the aggregate amount of the ~~Borrowers~~Revolving Commitments and (y) ~~in respect~~ the Aggregate Borrowing Base; or (D) the total Facility B Credit Exposure would exceed the lesser of ~~a Swingline Loan after receipt by~~ (x) the ~~Swingline Lender~~ aggregate amount of the ~~proceeds~~ Facility B Commitments and (y) the Aggregate Borrowing Base minus the Facility A Credit Exposure; subject, in the case of ~~a sale~~ each of ~~participations therein shall be promptly remitted by the Swingline Lender~~ clauses (C) and (D) above, to the Administrative Agent~~; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent~~ ’s authority, in its sole discretion, to make Protective Advances pursuant to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase terms of ~~participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof~~Section 2.04. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Office Depot Inc)

Swingline Loans. In order to reduce the frequency of transfers of funds from Lenders to Agent for making Revolving Credit Loans and for so long as no Default or Event of Default has occurred and is continuing, Agent shall be permitted (abut not required) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees~~ to make ~~Swingline~~ Revolving Credit Loans to ~~the~~ Borrowers ~~from time~~ upon request by Borrower Representative (such Revolving Credit Loans to ~~time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding~~ be designated as "Swingline Loans"); provided that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding ~~exceeding Swingline Sublimit~~at any time will not (i) exceed $15,000,000; ~~provided that~~ (ii) when added to the ~~Swingline Lender shall be required~~ principal amount of Agent's other Revolving Credit Loans then outstanding plus Agent's Revolving Loan Percentage of the LC Exposure, exceed Agent's Revolving Credit Commitment; or (iii) when added to ~~make a Swingline Loan to refinance an~~ the principal amount of all other Revolving Credit Loans then outstanding ~~Swingline Loan~~plus the LC Exposure (other than the Cash Collateralized LC Exposure), exceed the Borrowing Base. Within the foregoing ~~limits and subject to the terms and conditions set forth herein~~limits, ~~the~~ Borrowers may borrow, ~~prepay~~ repay and reborrow Swingline Loans. . All Swingline Loans shall be treated as Revolving Credit Loans for purposes of this Agreement, except that (a) all Swingline Loans shall be Base Rate Portions and (b) ~~To request~~ notwithstanding anything herein to the contrary (other than as set forth in the next succeeding sentence), all principal and interest paid with respect to Swingline Loans shall be for the sole account of Agent in its capacity as the lender of Swingline Loans. Notwithstanding the foregoing, not more than two Business Days after (1) Lenders receive notice from Agent that a Swingline ~~Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender~~ Loan has been advanced in respect of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day a drawing under a Letter of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, Credit or (y2) in any other circumstance, demand is made by Agent after the ~~case of any ABR Revolving Borrowing or Swingline Loan requested to finance~~ occurrence and during the ~~reimbursement~~ continuance of an ~~LC Disbursement as provided in Section 2.05(f)~~Event of Default, ~~the identity of the Issuing Bank that made such LC Disbursement. The Swingline~~ each Lender shall ~~make~~ irrevocably and unconditionally purchase and receive from Agent, without recourse or warranty from Agent, an undivided interest and participation in each Swingline Loan ~~available~~ to the extent of such Xxxxxx's Revolving Loan Percentage thereof, by paying to Agent, in same day funds, an amount equal to such ~~Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline~~ Xxxxxx's Revolving Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date Percentage of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Loan and Security Agreement (Century Aluminum Co)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22)~~herein, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ each Swingline Lender ~~agrees to~~ may in its sole discretion make Swingline Loans in Agreed Loan Currencies to ~~the Borrowers~~ any Borrower from time to time during the ~~Revolving~~ Availability ~~Period denominated in dollars~~ Period, in an aggregate principal ~~amount~~ Dollar Amount at any time outstanding that will ~~not~~ not, subject to fluctuations in currency exchange rates and Section 2.11.2, result in (i) subject to Section ~~9.04(b)(ii)~~2.04, the ~~Applicable Fronting Exposure~~ Dollar Amount of the aggregate principal amount of outstanding Swingline Loans made by such Swingline Lender exceeding such Swingline Lender’s Swingline Sublimit, except to the extent otherwise agreed by such Swingline Lender and the Company with notice to the Administrative Agent, (ii) subject to Section 2.04, any Swingline ~~Lender~~ Lender’s Revolving Credit Exposure exceeding its Revolving Commitment, (iiiii) subject to Section 2.04, the aggregate principal Dollar Amount of outstanding Swingline Loans exceeding $75,000,000, (iv) subject to Section 2.04, the Dollar Amount of the Total Revolving Credit Exposures exceeding the ~~aggregate~~ Aggregate Commitmentaggregate Revolving Commitments or (~~iii~~v) subject to Section 2.04, the Dollar Amount of the aggregate principal amount of outstanding Swingline Loans ~~outstanding~~ denominated in a Foreign Currency exceeding the Swingline Foreign Currency Sublimit; provided that ~~the~~ a Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, ~~the Borrowers~~ any Borrower may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent Borrower~~ applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the Administrative Agent ~~and the Swingline Lender~~ of such request by (i) by telephone (confirmed by telecopy or e-mail in ~~writing~~accordance with Section 9.01) or via a written request (in accordance with Section 9.01) promptly followed by ~~facsimile~~ telephonic confirmation of such request, not later than 1:00 p.m., Chicago time, on the day of a proposed Swingline Loan in Dollars (~~confirmed~~ other than a Designated Swingline Loan) and (ii) irrevocable written notice (via a written Borrowing Request signed by ~~telephone~~the applicable Borrower, or the Company on behalf of the applicable Borrower, promptly followed by telephonic confirmation of such request), not later than ~~10:00~~ 11:00 a.m., ~~New York City time~~Local Time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of ~~such~~ a proposed Eurocurrency Swingline Loan in a Foreign Currency or a Designated Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), applicable Borrower requesting such Swingline Loan, applicable currency, Interest Period (in the case of a Eurocurrency Swingline Loan), Type and amount of the requested Swingline Loan and ~~(x) if the funds are not to be credited to a general deposit account of such Borrower maintained with~~ the Swingline Lender ~~because~~ to make such ~~Borrower is unable to maintain a general deposit account with the~~ Swingline Loan. The Administrative Agent will promptly advise such Swingline Lender ~~under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case~~ of any ~~ABR Revolving Borrowing~~ such notice received from the Company or ~~Swingline Loan requested to finance~~ any other applicable Borrower. Unless otherwise directed by the ~~reimbursement of an LC Disbursement as provided in Section 2.05(f)~~Company or the applicable Borrower, ~~the identity of the Issuing Bank that made such LC Disbursement. The~~ each Swingline Lender shall (subject to such Swingline Lender’s discretion to make Swingline Loans as set forth in Section 2.05(a)) make each Swingline Loan to be made by it available to ~~such~~ the applicable Borrower by means of a credit to an account of the ~~general deposit accounts of~~ Company or such other applicable Borrower ~~maintained~~ with the ~~Swingline Lender~~ Administrative Agent designated for ~~the Swingline Loan~~ such purpose (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.06(e), by remittance to the ~~applicable~~ relevant Issuing Bank) by 3:00 p.m., ~~New York City time~~Local Time, on the requested date of such Swingline Loan. (c) ~~The~~ Any Swingline Lender may by written notice given to the Administrative Agent ~~not later than 2:00 p.m., New York City time, on any Business Day~~ require the Revolving Lenders to acquire participations ~~on such Business Day~~ in all or a portion of ~~the~~ its Swingline Loans ~~outstanding~~outstanding in the applicable Agreed Currency of such Swingline Loan or Loans. Such notice shall specify the aggregate amount and Agreed Currency of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice ~~the~~ such Revolving Lender’s Applicable Percentage of such Swingline Loan or Loans and the applicable Agreed Currency of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice ~~as provided above~~from the Administrative Agent (and in any event, if such notice is received by 12:00 noon, Local Time, on a Business Day, no later than 5:00 p.m., Local Time, on such Business Day and if received after 12:00 noon, Local Time, on a Business Day, no later than 10:00 a.m., Local Time, on the immediately succeeding Business Day), to pay in the applicable Agreed Currency to the Administrative Agent, for the account of ~~the~~ such Swingline Lender, such Revolving Lender’s Applicable Percentage of such Swingline Loan or ~~Swingline~~ Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or ~~any~~ reduction or termination of the ~~Revolving~~ Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section ~~2.06~~ 2.07 with respect to Loans made by such Revolving Lender (and Section ~~2.06~~ 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving ~~Lenders pursuant to this paragraph~~Lenders), and the Administrative Agent shall promptly ~~remit~~ pay to ~~the~~ such Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Company promptly of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to ~~the~~ such Swingline Lender. Any amounts received by ~~the~~ a Swingline Lender from the ~~Borrowers~~ applicable Borrower (or other ~~Person~~ party on behalf of ~~the Borrowers~~such Borrower) in respect of a Swingline Loan after receipt by ~~the~~ such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted ~~by the Swingline Lender~~ to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to ~~the~~ such Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to ~~the~~ such Swingline Lender or to the Administrative Agent, as ~~the case may be, and thereafter to the Borrowers~~applicable, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ applicable Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve ~~the Borrowers~~ any Borrower of any default in the payment ~~thereof~~of any Swingline Loan made to such Borrower. (d) ~~The Parent Borrower may,~~ Any Swingline Lender may be replaced at any time ~~and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance~~ by ~~a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to~~ written agreement among the ~~Administrative Agent and the Parent Borrower, executed by the Borrowers~~Company, the Administrative ~~Agent~~ Agent, the replaced Swingline Lender and ~~such designated~~ the successor Swingline Lender. The Administrative Agent shall notify the Revolving Lenders of any such replacement of the relevant Swingline Lender. At the time any such replacement shall become effective, ~~and, from~~ the Company shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.13(a). From and after the effective date of any such ~~agreement~~replacement, (i) ~~such Revolving~~ the successor Swingline Lender shall have all the rights and obligations of a the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof refer to such successor or to any previous Swingline Lender, ~~with~~ or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender ~~shall have been reduced to zero. Notwithstanding the effectiveness of any such termination~~hereunder, the ~~terminated~~ replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to ~~such termination~~its replacement, but shall not be required to make ~~any~~ additional Swingline Loans. (e) Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline Lender may resign as a Swingline Lender at any time upon thirty (30) days’ prior written notice to the Administrative Agent, the Company and the Revolving Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.05(d) above.

Appears in 1 contract

Samples: Credit Agreement (PENTAIR PLC)

Swingline Loans. (a) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ The Swingline Lender ~~agrees~~ is authorized by the Lenders, but is not obligated, to make Swingline Loans ~~to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount~~ at any time ~~outstanding that will not result in~~ (subject to Section 2.05(b)) up to the amount of (i) ~~subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment,~~ $10,000,000 plus (ii) the ~~aggregate Revolving Exposures exceeding~~ principal amount of any Permitted Overadvance in the aggregate ~~Revolving Commitments or (iii) the aggregate amount~~ outstanding at such time, upon a notice of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrowing from Lead Borrower ~~shall notify~~ received by the Administrative Agent and the Swingline Lender ~~of such request~~ (~~i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone)~~which notice, ~~not later than 10:00 a.m.~~at the Swingline Lender’s discretion, ~~New York City~~ may be submitted prior to 1:00 p.m., Boston time, oron the Business Day on which such Swingline Loan is requested). Swingline Loans shall be Prime Rate Loans and shall be subject to periodic settlement with the Lenders under Section 2.07. (b) Swingline Loans may be made only in the following circumstances: (A) for administrative convenience, ~~if agreed by~~ the Swingline Lender may, but is not obligated to, make Swingline Loans in reliance upon the Borrowers’ actual or deemed representations under Section 4.02, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances. If the conditions for borrowing under Section 4.02 cannot be fulfilled, the Required Lenders may direct the Swingline Lender to, and the Swingline Lender thereupon shall, cease making Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9.02 hereof. Unless the Required Lenders so direct the Swingline Lender, ~~2:00 p.m. New York City time on~~ the ~~day of such proposed~~ Swingline ~~Loan~~Lender may, but is not obligated to, continue to make Swingline Loans notwithstanding that the conditions for borrowing under Section 4.02 cannot be fulfilled. ~~Each such notice~~ No Swingline Loans shall be ~~irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x~~made pursuant to this Section 2.05(b) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided limitation set forth in Section ~~2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of~~ 2.01(a)(i) would be exceeded as a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment result thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Advanced Audio Concepts, LTD)

Swingline Loans. (a) Subject to the terms and conditions ~~set forth herein (including Section 2.22)~~of this Agreement, Bank One in ~~reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender~~ its individual capacity agrees to make ~~Swingline Loans to the Borrowers~~ at any time and from time to time ~~during~~ after the initial Borrowing Date and prior to the Swingline Expiry Date swingline loans to Borrower ("Swingline Loans"), which Swingline Loans (i) shall be made and maintained as Prime Rate Loans, (ii) shall be denominated in U.S. Dollars, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iv) shall not exceed in aggregate principal amount at any one time outstanding, when combined with the aggregate principal amount of all Revolving Credit Loans then outstanding, the Revolving ~~Availability Period denominated~~ Credit Loan Commitments and (v) shall not exceed in ~~dollars in an~~ aggregate principal amount at any time outstanding ~~that will not result~~ the lesser of (y) the Borrowing Base (determined as of the most recent month end or, if Borrower elects to provide an interim Borrowing Base Certificate pursuant to subsection 6.4 hereof, as of the date stated in such Borrowing Base Certificate) minus the sum of (~~i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii~~1) the aggregate ~~Revolving Exposures exceeding~~ principal amount of undrawn and drawn Standby L/Cs, exclusive of the ~~aggregate Revolving Commitments or~~ amount of Standby L/Cs issued for the purpose of satisfying bonding requirements, then outstanding, (~~iii~~2) the aggregate principal amount of undrawn and drawn Guaranteed HNB Joint Ventures Letters of Credit, exclusive of the amount of Guaranteed HNB Joint Ventures Letters of Credit issued for the purpose of satisfying bonding requirements, then outstanding, and (3) the aggregate principal amount of all Revolving Credit Loans then outstanding, or (z) the Maximum Swingline ~~Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to~~ Amount. Bank One will not make a Swingline Loan ~~to refinance~~ after it has received written notice from Borrower or the Required Banks stating that a Default or an ~~outstanding Swingline Loan. Within~~ Event of Default exists until such time as Bank One shall have received a written notice of (i) rescission of such notice from the ~~foregoing limits and subject to~~ party or parties originally delivering the ~~terms and conditions set forth herein~~same or (ii) a waiver of such Default or Event of Default, as required by the ~~Borrowers may borrow, prepay and reborrow Swingline Loans~~Credit Agreement. (b) ~~To request a Swingline Loan, the Parent~~ Borrower shall ~~notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing)~~ give Bank One irrevocable telephonic or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such written notice ~~shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not~~ prior to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., ~~New York City time~~Columbus, ~~on the requested date of such Swingline Loan.~~Ohio (c) The Swingline ~~Lender may~~ Loans shall be evidenced by ~~written notice given~~ a promissory note of Borrower, substantially in the form of Exhibit C attached hereto, (the "Swingline Note"), payable to the ~~Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require~~ order of Bank One and evidencing the ~~Revolving Lenders~~ obligation of Borrower to ~~acquire participations on such Business Day in all or a portion~~ pay the aggregate unpaid principal amount of the Swingline Loans ~~outstanding~~made by Bank One with interest thereon as prescribed in subsection 2.5 hereof. ~~Such notice shall specify~~ Bank One is hereby authorized to record electronically or otherwise the ~~aggregate~~ date and amount of each Swingline ~~Loans in which Revolving Lenders will participate. Promptly upon receipt~~ Loan, and the date and amount of each payment or prepayment of principal thereof, and any such ~~notice~~recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided, however, the ~~Administrative Agent will give notice thereof~~ failure of Bank One to ~~each Revolving Lender~~make any such recordation(s) shall not affect the obligation of Borrower to repay outstanding principal, ~~specifying~~ interest, or any other amount due hereunder or under the Swingline Note in ~~such notice~~ accordance with the ~~Lender’s Applicable Percentage~~ terms hereof and thereof. The Swingline Note shall (i) be dated as of ~~such~~ the date hereof, (ii) be stated to mature on the Swingline ~~Loan or Swingline Loans. Each Revolving Lender hereby absolutely~~ Expiry Date, and ~~unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent,~~ (iii) bear interest for the ~~account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges~~ period from and ~~agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,~~ including the ~~occurrence and continuance of a Default or any reduction or termination of~~ date thereof on the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in unpaid principal amount thereof from time to time outstanding at the ~~same manner~~ applicable interest rate per annum determined as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the subsection 2.5 hereof. Interest on each Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan Note shall be ~~made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers)~~ payable as specified in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereofsubsection 2.5 hereof. (d) ~~The Parent Borrower may~~Bank One, at any time and ~~from time~~ in its sole and absolute discretion, may, on behalf of Borrower (which hereby irrevocably directs Bank One to ~~time~~act on Borrower's behalf), ~~designate as additional Swingline Lenders one or more Revolving Lenders that agree~~ request each Bank, including Bank One, to ~~serve in such capacity as provided below. The acceptance by~~ make a Revolving ~~Lender~~ Credit Loan (each, a "Mandatory Borrowing") in an amount equal to such Bank's Revolving Credit Loan Commitment Percentage of ~~an appointment as a~~ the amount of the Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and Loans (provided that each such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” request shall be deemed to ~~include such~~ have been automatically given upon the occurrence of a Default or an Event of Default under Section 9 or upon the exercise of any of the remedies provided in the last paragraph of Section 9), in which case each Bank shall make the proceeds of its Revolving ~~Lender in its capacity as a lender of Swingline Loans hereunder.~~Credit Loan available to Bank One on the (e) ~~The Parent Borrower may terminate the appointment of~~ Whenever, at any time after Bank One has received from any Bank such Bank's participating interest in a Swingline ~~Lender as a “Swingline Lender” hereunder by providing a written notice thereof~~ Loan and Bank One receives any payment on account thereof, Bank One will distribute to such ~~Swingline Lender~~Bank its participating interest in such amount (appropriately adjusted, ~~with a copy~~ in the case of interest payments, to reflect the ~~Administrative Agent. Any~~ period of time during which such ~~termination shall become effective upon~~ Bank's participating interest was outstanding and funded); provided, however, that in the ~~earlier of (i)~~ event that such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.payment received

Appears in 1 contract

Samples: Revolving Credit Loan Agreement (M I Schottenstein Homes Inc)

Swingline Loans. ~~(a)~~ Subject to and upon the terms and conditions set forth herein (~~including Section 2.22)~~including, ~~in reliance upon~~ without limitation, the ~~agreements of the other Lenders~~ conditions set forth in ~~this~~ Section ~~2.04~~6), the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower maymake, at any time and from time to ~~time~~time on or after the Initial Borrowing Date and prior to the Swingline Expiry Date (x) a revolving loan or revolving loans to the U.S. ABL Borrowers (on a joint and several basis) (each, ~~designate as additional~~ a “U.S. ABL Borrowers Swingline ~~Lenders one~~ Loan” and, collectively, the “U.S. ABL Borrowers Swingline Loans”) and (y) a revolving loan or ~~more Revolving Lenders that agree~~ revolving loans to ~~serve in such capacity as provided below. The acceptance by~~ the European Borrower (each, a ~~Revolving Lender of an appointment as~~ “European Borrower Swingline Loan” and, collectively, the “European Borrower Swingline Loans” and, together with the U.S. ABL Borrowers Swingline Loans, each a “Swingline ~~Lender hereunder shall be evidenced by an agreement~~Loan” and, collectively, the “Swingline Loans”), which ~~shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated~~ Swingline ~~Lender, and, from and after the effective date of such agreement,~~ Loans: (i) ~~such Revolving Lender shall have all~~ shall, be made and maintained in the ~~rights and obligations of a Swingline Lender under this Agreement and~~ respective Available Currency elected by U.S. ABL Borrowers or the European Borrower, as the case may be; (ii) ~~references herein~~ shall be made and maintained as Base Rate Loans (if the Available Currency elected is U.S. Dollars) or Euro Denominated Swingline Loans (if the Available Currency elected is Euros); (iii) may be repaid and reborrowed in accordance with the provisions hereof; (iv) shall not be made (and shall not be required to be made) if the making of same would cause the Aggregate RL Facility Exposure (after giving effect to the ~~term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender~~ use of ~~Swingline Loans hereunder. (e) The Parent Borrower may terminate~~ the ~~appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice~~ proceeds thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following on the date of the ~~delivery thereof~~incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) to exceed the Total Revolving Loan Commitment at such time; ~~provided that no such termination~~ and (v) shall ~~become effective until and~~ not exceed in aggregate principal amount at any time outstanding (taking the U.S. Dollar Equivalents of all amounts in Euros), the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(e), (x) the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists with respect to any ABL Lender unless the Swingline ~~Exposure~~ Lender has entered into arrangements satisfactory to it to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ refunding obligations (through the requirement that Mandatory Borrowings be made from time to time) in respect of such Swingline Loans including by cash collateralizing (in the relevant currency or currencies) such Defaulting Lender’s or Defaulting Lenders’ RL Facility Percentages of the outstanding Swingline Loans, and (y) the Swingline Lender shall not make any Swingline Loan after it has received written notice from any Borrower, any other Credit Party or the ABL Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have ~~been reduced to zero~~received written notice (A) of rescission of all such notices from the party or parties originally delivering such notice or notices or (B) of the waiver of such Default or Event of Default by the ABL Required Lenders. ~~Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender~~ The European Borrower shall ~~remain a party hereto and shall continue to~~ have ~~all the rights of a Swingline Lender~~ no liability under this Agreement with respect to any U.S. ABL Borrowers Swingline Loans ~~made by it prior to such termination~~which may be extended to, ~~but~~ and shall ~~not make any additional Swingline Loans~~constitute obligations of, the U.S. ABL Borrowers.

Appears in 1 contract

Samples: Credit Agreement (Exide Technologies)

Swingline Loans. (a) ~~Subject to~~ On the terms and subject to the conditions ~~set forth herein (including Section 2.22), in reliance~~ and relying upon the ~~agreements of the other Lenders~~ representations and warranties herein set ~~forth in this Section 2.04~~forth, the Swingline Lender ~~agrees~~ agrees, at any time and from time to time from and including the Closing Date to but excluding the earlier of the Revolving Credit Maturity Date and the termination of the Revolving Credit Commitments, in accordance with the terms hereof, to make Swingline Loans (which shall be ABR Borrowings) to the ~~Borrowers from time to time during the Revolving Availability Period denominated in dollars~~ Borrower in an aggregate principal amount at any time outstanding ~~that will~~ not ~~result in~~ to exceed the lesser of (i) ~~subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment,~~ $5,000,000 and (ii) the ~~aggregate Revolving Exposures exceeding~~ difference between (A) the aggregate Revolving ~~Commitments or~~ Credit Commitments, as the same may be reduced from time to time pursuant to Section 2.09, at such time and (~~iii~~B) the sum of the aggregate principal amount of Revolving Loans outstanding at such time and the LC Exposure at such time. Each Lender's Revolving Credit Commitment shall be deemed utilized by an amount equal to such Lender's pro rata share (based upon the percentage that such Lender's Revolving Credit Commitment bears to the aggregate amount of the Revolving Loan Commitments on such date) of each Swingline ~~Loans outstanding exceeding~~ Loan. Immediately upon the making of each Swingline ~~Sublimit; provided that~~ Loan, the Swingline Lender shall be ~~required~~ deemed to ~~make a Swingline Loan~~ have sold and transferred to ~~refinance an outstanding Swingline Loan. Within the foregoing limits~~ each such Lender, and ~~subject~~ each such Lender shall be deemed to ~~the terms~~ have purchased and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by received from the Swingline Lender, ~~2:00 p.m. New York City time on~~ in each case irrevocably and without any further action by any party, an undivided interest and participation in such Swingline Loan and the ~~day~~ Obligations of the Borrower under this Agreement in respect thereof in an amount equal to such Lender's pro rata share (determined as aforesaid) of such ~~proposed~~ Swingline Loan. Each ~~such notice~~ Swingline Loan shall be ~~irrevocable~~ in a principal amount that is an integral multiple of $500,000 and shall ~~specify the requested date (which shall~~ be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made ~~such LC Disbursement. The Swingline Lender shall make each Swingline Loan~~ available to ~~such~~ the Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Travelcenters of America Inc)

Swingline Loans. (a) ~~Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the~~ The Swingline Lender ~~agrees~~ is authorized by the Lenders, but is not obligated, to make Swingline Loans up to ~~the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in~~ (i) ~~subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment,~~ $5,000,000 plus (ii) the ~~aggregate Revolving Exposures exceeding~~ maximum Permitted Overadvance, in the aggregate ~~Revolving Commitments or (iii) the aggregate amount~~ outstanding at any time, consisting only of ~~Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make~~ Prime Rate Loans, upon a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify notice of Borrowing received by the Administrative Agent and the Swingline Lender ~~of such request~~ (~~i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone)~~which notice may be submitted prior to 1:00 p.m., ~~not later than 10:00 a.m., New York City~~ Boston time, oron the Business Day on which such Swingline Loan is requested). Swingline Loans shall be subject to periodic settlement with the Lenders under Section 2.07 below. (b) Swingline Loans shall only be made in the event that there is more than one Lender under this Agreement, ~~if agreed by~~ and may be made only in the following circumstances: (A) for administrative convenience, the Swingline Lender may, but is not obligated to, make Swingline Loans in reliance upon the Borrowers’ actual or deemed representations under Section 4.02, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances. If the conditions for borrowing under Section 4.02 cannot be fulfilled, the Required Lenders may direct the Swingline Lender to, and the Swingline Lender thereupon shall, cease making Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9.02 hereof. Unless the Required Lenders so direct the Swingline Lender, ~~2:00 p.m. New York City time on~~ the ~~day of such proposed~~ Swingline ~~Loan~~Lender may, but is not obligated to, continue to make Swingline Loans notwithstanding that the conditions for borrowing under Section 4.02 cannot be fulfilled. ~~Each such notice~~ No Swingline Loans shall be ~~irrevocable and shall specify~~ made pursuant to this subsection (b) if the ~~requested date (which shall be a Business Day), the~~ aggregate outstanding amount of the ~~requested Swingline Loan~~ Credit Extensions and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans ~~outstanding. Such notice shall specify~~ would exceed the ~~aggregate amount~~ lower of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) ~~such Revolving Lender shall~~ $50,000,000 or any other amount to which the Commitments have ~~all~~ then been reduced by the ~~rights and obligations of a Swingline Lender under this Agreement~~ Borrowers pursuant to Sections 2.16, and (ii) ~~references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder.~~ (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement other than with respect to ~~Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~Permitted Overadvances) the then amount of the Borrowing Base.

Appears in 1 contract

Samples: Credit Agreement (Wet Seal Inc)

Swingline Loans. (a) Subject to the terms and conditions set forth ~~herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04~~herein, the Swingline Lender agrees to make Swingline Loans to the ~~Borrowers~~ Borrower in Dollars from time to time ~~during~~ on and after the Closing Date and until the Latest Revolving ~~Availability Period denominated in dollars~~ Credit Maturity Date, in an aggregate principal amount at any time outstanding not to exceed $10,000,000; provided that ~~will not result in~~ after giving effect to any Swingline Loan, (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting~~ aggregate amount of the Initial Revolving Credit Exposure shall not exceed the aggregate amount of ~~any Swingline Lender exceeding its~~ the Initial Revolving ~~Commitment,~~ Credit Commitments then in effect and (ii) the aggregate amount of the Revolving ~~Exposures exceeding the aggregate~~ Credit Exposure attributable to any Class of Additional Revolving Credit Commitments ~~or (iii)~~ shall not exceed the aggregate amount of the Additional Revolving Credit Commitments of such Class then in effect. Each Swingline ~~Loans outstanding exceeding~~ Loan shall be in a minimum principal amount of not less than $100,000 or such lesser amount as may be agreed by the Swingline ~~Sublimit~~Lender; provided ~~that~~ that, notwithstanding the ~~Swingline Lender shall be required~~ foregoing but subject to ~~make~~ the first sentence of this Section 2.04(a), a Swingline Loan may be in an aggregate amount that is (x) not greater than the entire unused balance of the aggregate unused Revolving Credit Commitments or (y) required to ~~refinance~~ finance the reimbursement of an ~~outstanding Swingline Loan~~LC Disbursement as contemplated by Section 2.05(e). Within the foregoing limits and subject to the terms and conditions set forth herein, ~~the Borrowers~~ Swingline Loans may ~~borrow~~be borrowed, ~~prepay~~ prepaid and ~~reborrow Swingline Loans. (b)~~ reborrowed. To request a Swingline Loan, the ~~Parent~~ Borrower shall notify the ~~Administrative Agent and the~~ Swingline Lender (with a copy to the Administrative Agent) of such request ~~(i)~~ in writing by ~~telephone (confirmed in writing) or~~ delivery of an irrevocable Borrowing Request signed by ~~facsimile (confirmed by telephone),~~ a Responsible Officer of the Borrower not later than ~~10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00~~ 12:00 p.m. ~~New York City time~~ on the day of ~~such~~ a proposed Swingline ~~Loan~~Loan (or, in each case, such later time as shall be acceptable to the Swingline Lender). Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and ~~(x) if~~ the ~~funds are not to be credited to a general deposit account~~ Funding Account. No later than 2:00 p.m. on the date of such ~~Borrower maintained with the~~ requested Swingline ~~Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law~~Loan, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the Borrower by means of a credit to the ~~general deposit accounts of such~~ Funding Account specified by the Borrower ~~maintained with the Swingline Lender for the Swingline Loan~~ (orincluding, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section ~~2.05(f~~2.05(e), by remittance to the applicable Issuing Bank~~) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan~~). (cb) The Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00 p.m., New York City time,~~ 12:00 p.m. on any Business Day require the Revolving Lenders to acquire participations on ~~such~~ the second Business Day following receipt of such notice in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice ~~the~~ such Revolving Lender’s Applicable Revolving Credit Percentage of such ~~Swingline Loan or~~ Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Revolving Credit Percentage of such ~~Swingline Loan or~~ Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Revolving Loans made by such Revolving Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this ~~paragraph~~Section 2.04(b)), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower of any participations in any Swingline Loan acquired pursuant to this ~~paragraph~~Section 2.04(b), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender ~~from the Borrowers (or other Person on behalf of the Borrowers)~~ in respect of a any Swingline Loan after receipt by the Swingline Lender of the proceeds of a any sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative ~~Agent;~~ Agent and any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this ~~paragraph~~ Section 2.04(b) and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the ~~Borrowers~~Borrower, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this ~~paragraph~~ Section 2.04(b) shall not relieve the ~~Borrowers~~ Borrower of any default in the payment thereof. (dc) ~~The Parent Borrower may, at~~ If any ~~time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a~~ Revolving Lender ~~of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory~~ fails to make available to the Administrative Agent ~~and~~ for the ~~Parent Borrower, executed~~ account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04 by the ~~Borrowers~~time specified in Section 2.04(b), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect and a rate determined by the Administrative Agent ~~and such designated~~ in accordance with banking industry rules on interbank compensation. A certificate of the Swingline ~~Lender, and, from and after the effective date of such agreement, (i) such~~ Lender submitted to any Revolving Lender ~~shall have all the rights and obligations of a Swingline Lender under this Agreement and~~ (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to through the Administrative Agent~~. Any such termination shall become effective upon the earlier of (i~~) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to ~~Swingline Loans made by it prior to such termination, but~~ any amounts owing under this clause (c) shall ~~not make any additional Swingline Loans~~be conclusive absent manifest error.

Appears in 1 contract

Samples: First Lien Credit Agreement (PSAV, Inc.)

Swingline Loans. (a) Subject to the terms and conditions set forth herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the ~~Borrowers~~ Borrower from time to time during the Revolving Availability Period denominated in ~~dollars~~ dollars, in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the ~~Applicable Fronting Exposure~~ outstanding Swingline Loans of ~~any~~ the Swingline Lender exceeding its ~~Revolving Commitment,~~ Swingline Commitment or (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving ~~Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit;~~ Commitments, provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers~~ Borrower may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the ~~Parent~~ Borrower shall notify the Administrative Agent and the Swingline Lender of such request ~~(i)~~ by telephone (confirmed in writing) or by facsimile or electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank (confirmed by telephone), not later than ~~10:00 a.m.~~1:00 p.m., New York City time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of ~~such~~ the Borrower maintained with the Swingline ~~Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law~~Lender, the location and number of ~~such~~ the Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Loan Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to ~~such~~ the Borrower by means of a credit to the ~~general~~ applicable deposit ~~accounts~~ account of ~~such~~ the Borrower ~~maintained with the Swingline Lender for the Swingline Loan~~ (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than ~~2:00 p.m.~~10:00 a.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice ~~the~~ such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (with references to 2:00, New York City time, in such Section being deemed to be references to 4:00 p.m., New York City time) (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the ~~Borrowers~~ Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the ~~Borrowers~~ Borrower (or other Person on behalf of the ~~Borrowers~~Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; , provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the ~~Borrowers~~Borrower, if and to the extent such payment is required to be refunded to the ~~Borrowers~~ Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the ~~Borrowers~~ Borrower of any default in the payment thereof. (d) The ~~Parent~~ Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the ~~Parent~~ Borrower, executed by the ~~Borrowers~~Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The ~~Parent~~ Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth (5th) Business Day following the date of the delivery thereof; , provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (N-Able, Inc.)

Swingline Loans. (a) ~~Subject to~~ The Swingline Lender agrees, on the terms and conditions set forth ~~herein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth~~ in this ~~Section 2.04~~Agreement, ~~the Swingline Lender agrees~~ to make Swingline Loans to the ~~Borrowers~~ Borrower pursuant to this Section 2.03 from time to time on any Business Day during the period from the Effective Date until the Revolving ~~Availability Period denominated~~ Advance Commitment Termination Date in ~~dollars in an~~ amounts such that (x) the aggregate principal amount of Swingline Loans at any one time outstanding ~~that will~~ shall not ~~result in~~ exceed the Swingline Commitment and (y) at the time such Swingline Loan is made, the sum of (i) ~~subject to Section 9.04(b)(ii),~~ the ~~Applicable Fronting Exposure~~ aggregate principal amount of ~~any Swingline Lender exceeding its~~ all Revolving ~~Commitment,~~ Advances at such time plus (ii) the aggregate amount of all Revolving ~~Exposures exceeding the aggregate Revolving Commitments or~~ Lenders’ Swingline Exposure at such time plus (iii) the aggregate amount of all Revolving Lenders’ LC Exposure at such time outstanding shall not exceed the aggregate amount of all Revolving Lenders’ Revolving Advance Commitments. Upon the making of each Swingline ~~Loans outstanding exceeding Swingline Sublimit; provided that~~ Loan, and without further action on the part of the Swingline Lender or any other Person, each Revolving Lender (other than the Swingline Lender) shall be ~~required~~ deemed to ~~make~~ have irrevocably purchased, to the extent of its Percentage, a participation interest in such Swingline Loan, and such Revolving Lender shall, to the extent of its Percentage, be responsible for reimbursing within one Business Day the Swingline Lender for Swingline Loans that have not been reimbursed by the Borrower in accordance with the terms of this Agreement. Each Swingline Loan ~~to refinance an outstanding~~ shall be in a principal amount of at least $1,000,000 or any larger multiple of $1,000,000. All Swingline ~~Loan~~Loans shall be made as Base Rate Advances. Within the foregoing ~~limits and subject to the terms and conditions set forth herein~~limits, the ~~Borrowers~~ Borrower may ~~borrow~~borrow under this Section 2.03, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephonerepay pursuant to Section 2.07(b), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent ~~such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a~~ permitted by Section 2.12(c), prepay Swingline ~~Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time~~ Loans and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender reborrow under this ~~Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder~~Section 2.03. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.

Appears in 1 contract

Samples: Credit Agreement (Supervalu Inc)

Swingline Loans. (ai) ~~Subject~~ The US Administrative Agent, the US Swingline Lender and the Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative delivers a Borrowing Request to the US Administrative Agent and the US Swingline Lender requesting an ABR Borrowing on behalf of the US Borrowers to be made pursuant to this Section 2.05(a)(i), and provided that such ABR Borrowing request is received by the US Administrative Agent and the US Swingline Lender not later than 11:00 a.m., Local Time, the US Swingline Lender may elect to have the terms of this Section 2.05(a)(i) apply to such Borrowing Request by advancing, on behalf of the Lenders and in the amount so requested, same day funds to the US Borrowers on the date such request is received to the Funding Account(s) (each such Loan, a “US Swingline Loan”), with settlement among the Lenders as to the US Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each US Swingline Loan shall be subject to all the terms and conditions ~~set forth herein~~ applicable to other ABR Loans funded by the Lenders, except that all payments thereon shall be payable to the US Swingline Lender solely for its own account. In addition, no US Swingline Loan shall be made if, after giving effect thereto: (~~including~~ A) the Borrowers would not be in compliance with the Revolving Exposure Limitations; or (B) the aggregate principal amount of the US Swingline Loans would exceed the US Swingline Sublimit. (ii) The Canadian Administrative Agent, the Canadian Swingline Lender and the Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Canadian Borrower delivers a Borrowing Request to the Canadian Administrative Agent and the Canadian Swingline Lender (with a copy to the US Administrative Agent) requesting an ABR Borrowing to be made pursuant to this Section ~~2.22~~2.05(a)(ii), ~~in reliance upon~~ and provided that such ABR Borrowing request, as applicable, is received by the ~~agreements~~ Canadian Administrative Agent and the Canadian Swingline Lender not later than 11:00 a.m., Local Time, the Canadian Swingline Lender may elect to have the terms of this Section 2.05(a)(ii) apply to such Borrowing Request by advancing, on behalf of the ~~other~~ Lenders and in the amount so requested, same day funds to the Canadian Borrower on the date such Borrowing Request is received to the Funding Account(s) (each such Loan, a “Canadian Swingline Loan”), with settlement among the Lenders as to the Canadian Swingline Loans to take place on a periodic basis as set forth in ~~this~~ Section ~~2.04, the~~ 2.05(c). Each Canadian Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) Loan shall be subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to all the terms and conditions ~~set forth herein~~applicable to other Loans funded by the Lenders that are ABR Revolving Loans except that all payments thereon shall be payable to the Canadian Swingline Lender solely for its own account. In addition, no Canadian Swingline Loan shall be made if, after giving effect thereto: (A) the Borrowers ~~may borrow, prepay and reborrow~~ would not be in compliance with the Revolving Exposure Limitations; or (B) the aggregate principal amount of the outstanding Canadian Swingline ~~Loans~~Loans would exceed the Canadian Swingline Sublimit. (b) ~~To request~~ Upon the making of a US Swingline Loan or a Canadian Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline Loan~~, the Parent Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone~~), ~~not later than 10:00 a.m.~~each Lender shall be deemed, ~~New York City time~~without further action by any party hereto, ~~or, if agreed by~~ to have unconditionally and irrevocably purchased from the applicable Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in as the case ~~of any ABR Revolving Borrowing~~ may be, without recourse or ~~Swingline Loan requested to finance the reimbursement of~~ warranty, an ~~LC Disbursement as provided~~ undivided interest and participation in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan in proportion to its Applicable Percentage. The applicable Swingline Lender may, at any time, require the applicable Lenders to fund, in dollars, their participations. From and after the date, if any, on which any Lender is required to fund (and has funded) its participation in any Swingline Loan purchased hereunder, the US Administrative Agent or ~~Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to~~ the Canadian Administrative Agent, ~~for the account of the Swingline~~ as applicable, shall promptly distribute to such Lender, such Lender’s Applicable Percentage of ~~such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges~~ all payments of principal and ~~agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute~~ interest and ~~unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance~~ all proceeds of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made Collateral received by such ~~Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the~~ Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such ~~Swingline Loan shall be made to the~~ Loan. Each Administrative ~~Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person~~ Agent, on behalf of the ~~Borrowers~~applicable Swingline Lender, shall request settlement (a “Settlement”) with the Lenders on at least a weekly basis or on any earlier date that the applicable Administrative Agent elects, by notifying the Lenders of such requested Settlement by facsimile or e-mail no later than 11:00 a.m. Local Time (i) on the date of such requested Settlement (the “Settlement Date”) with regard to US Swingline Loans, and (ii) two Business Days prior to the Settlement Date with regard to Canadian Swingline Loans (or on the date of such requested Settlement, if a Default or an Event of Default has occurred and is continuing) (the date of any request made pursuant to clauses (i) or (ii) above, a “Settlement Request Date”). Each Lender (other than the Swingline Lenders, in the case of the Swingline Loans) shall transfer, in the currency in which the applicable Loan was denominated, the amount of such Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the applicable Administrative Agent, to an account of such Administrative Agent as such Administrative Agent may designate, not later than 2:00 p.m., Local Time, on such Settlement Date. Settlements may occur during the existence of a ~~Swingline Loan after receipt by~~ Default and whether or not the ~~Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender~~ applicable conditions precedent set forth in Section 4.02 have then been satisfied. Such amounts transferred to the ~~Administrative Agent; any such amounts received by the~~ applicable Administrative Agent shall be ~~promptly remitted by~~ applied against the ~~Administrative Agent to~~ amounts of the ~~Revolving Lenders that shall have made their payments pursuant to this paragraph and to the~~ applicable Swingline Lender~~, as their interests may appear; provided that any such payment so remitted shall be repaid to the~~ ’s Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, Loans and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, together with ~~a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i)~~ such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure Applicable Percentage of such Swingline ~~Lender~~ Loan, shall (so long as no Event of Default pursuant to clause (h) or (i) of Article VII shall have ~~been reduced to zero~~occurred and be continuing) constitute Revolving Loans (and shall no longer constitute Swingline Loans). ~~Notwithstanding the effectiveness of~~ If any such ~~termination~~amount referred to in this clause (c) is not transferred to the applicable Administrative Agent by any applicable Lender on such Settlement Date, the ~~terminated~~ applicable Swingline Lender shall ~~remain a party hereto and shall continue~~ be entitled to ~~have all the rights of a Swingline~~ recover such amount on demand from such Lender ~~under this Agreement~~ together with ~~respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~interest thereon as specified in Section 2.07.

Appears in 1 contract

Samples: Credit Agreement (Bowne & Co Inc)

Swingline Loans. (a) ~~Subject~~ The Administrative Agent, the U.S. Swingline Lender and the U.S. Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents with respect to the U.S. Facility, promptly after the Borrower Representative requests an ABR Borrowing under the U.S. Facility, the U.S. Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the U.S. Revolving Lenders and ~~conditions set forth herein~~ in the amount requested, same day funds to the U.S. Borrowers, on the applicable borrowing date to the Funding Account(s) (~~including~~ each such Loan made solely by the U.S. Swingline Lender pursuant to this Section ~~2.22~~2.05(a) is referred to in this Agreement as a “U.S. Swingline Loan”), ~~in reliance upon~~ with settlement among them as to the ~~agreements of the other Lenders~~ U.S. Swingline Loans to take place on a periodic basis as set forth in ~~this~~ Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii2.05(f), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. ~~Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b)~~ To request a U.S. Swingline Loan, the ~~Parent~~ Borrower Representative shall notify the Administrative Agent and the U.S. Swingline Lender of such request by telephone (confirmed by facsimile or an Approved Email Notice), not later than 2:00 p.m., Local Time, on the day of a proposed U.S. Swingline Loan. Each U.S. Swingline Loan shall be subject to all the terms and conditions applicable to other ABR Loans funded by the U.S. Revolving Lenders, except that all payments thereon shall be payable to the U.S. Swingline Lender solely for its own account. The U.S. Swingline Lender shall not make any U.S. Swingline Loan if, after giving effect thereto, the Borrowers would not be in compliance with the Revolving Exposure Limitations or the aggregate Dollar Amount of all Swingline Loans would exceed $30,000,000. All U.S. Swingline Loans shall be ABR Borrowings. (b) The Canadian Administrative Agent, the Canadian Swingline Lender and the Canadian Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents with respect to the Canadian Facility, promptly after the Borrower Representative requests an ABR Borrowing or a Canadian Prime Rate Borrowing under the Canadian Facility, the Canadian Swingline Lender may elect to have the terms of this Section 2.05(b) apply to such Borrowing Request by advancing, on behalf of the Canadian Revolving Lenders and in the amount requested, same day funds to the Canadian Borrowers or the U.S. Borrowers, on the applicable Borrowing date to the Funding Account(s) (each such Loan made solely by the Canadian Swingline Lender pursuant to this Section 2.05(b) is referred to in this Agreement as a “Canadian Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(f). To request a Canadian Swingline Loan, the Borrower Representative shall notify the Canadian Administrative Agent and the Canadian Swingline Lender of such request (iwith a copy to the Administrative Agent) by telephone (confirmed ~~in writing) or~~ by facsimile ~~(confirmed by telephone~~or an Approved Email Notice), not later than ~~10:00 a.m.~~2:00 p.m., ~~New York City time~~Local Time, ~~or, if agreed by the Swingline Lender, 2:00 p.m. New York City time~~ on the day of ~~such~~ a proposed Canadian Swingline Loan. Each ~~such notice~~ Canadian Swingline Loan shall be ~~irrevocable~~ subject to all the terms and ~~shall specify~~ conditions applicable to other ABR Loans or Canadian Prime Rate Loans funded by the ~~requested date (which~~ Canadian Revolving Lenders, except that all payments thereon shall be payable to the Canadian Swingline Lender solely for its own account. The Canadian Swingline Lender shall not make any Canadian Swingline Loan if, after giving effect thereto, the Borrowers would not be in compliance with the Revolving Exposure Limitations or the aggregate Dollar Amount of all Swingline Loans would exceed $30,000,000. All Canadian Swingline Loans shall be ABR Borrowings or Canadian Prime Rate Borrowings. (c) The European Administrative Agent, the U.K. Swingline Lender and the U.K. Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents with respect to the U.K. Facility, promptly after the Borrower Representative requests a ~~Business Day~~U.K. Swingline Loan, the U.K. Swingline Lender may elect to have the terms of this Section 2.05(c) apply to such Borrowing Request by advancing, on behalf of the U.K. Revolving Lenders, and in the amount requested, same day funds to the U.K. Borrowers or the U.S. Borrowers (as applicable), on the ~~amount of~~ applicable Borrowing date to the ~~requested~~ Funding Account(s) (each such Loan made solely by the U.K. Swingline ~~Loan and (x~~Lender pursuant to this Section 2.05(c) ~~if the funds are not~~ is referred to ~~be credited~~ in this Agreement as a “U.K. Swingline Loan”), with settlement among them as to ~~a general deposit account of such Borrower maintained with~~ the Swingline ~~Lender because such Borrower is unable~~ Loans to ~~maintain~~ take place on a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement periodic basis as ~~provided~~ set forth in Section 2.05(f). To request a U.K. Swingline Loan, the ~~identity~~ Borrower Representative shall notify the European Administrative Agent and the U.K. Swingline Lender (with a copy to the Administrative Agent) of such request by telephone (confirmed by facsimile or an Approved Email Notice), not later than 11:00 a.m., Local Time, on the day of a proposed U.K. Swingline Loan. Each U.K. Swingline Loan shall be subject to all the terms and conditions applicable to other Eurodollar Loans on behalf of the ~~Issuing Bank~~ U.K. Borrowers that ~~made such LC Disbursement~~are funded by the U.K. Revolving Lenders, except that all payments thereon shall be payable to the U.K. Swingline Lender solely for its own account. ~~The~~ No U.K. Swingline Lender shall make ~~each~~ any U.K. Swingline Loan ~~available~~ if, after giving effect thereto, the Borrowers would not be in compliance with the Revolving Exposure Limitations or the aggregate Dollar Amount of all Swingline Loans would exceed $30,000,000. All U.K. Swingline Loans shall be Overnight LIBO Borrowings. (d) The European Administrative Agent, the French Swingline Lender and the French Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents with respect to the French Facility, promptly after the Borrower Representative requests a Swingline Loan under the French Facility, the French Swingline Lender may elect to have the terms of this Section 2.05(d) apply to such Borrowing Request by advancing, on behalf of the French Revolving Lenders, and in the amount requested, same day funds, to the French Borrowers or the U.S. Borrowers, on the applicable Borrowing date to the Funding Account(s) (each such Loan made solely by the French Swingline Lender pursuant to this Section 2.05(d) is referred to in this Agreement as a “French Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(f). To request a French Swingline Loan, the Borrower Representative shall notify the European Administrative Agent and the French Swingline Lender (with a copy to the Administrative Agent) of such request by ~~means~~ telephone (confirmed by facsimile or an Approved Email Notice), not later than 11:00 a.m., Local Time, on the day of a ~~credit~~ proposed French Swingline Loan. Each French Swingline Loan shall be subject to all the terms and conditions applicable to other Eurodollar Loans on behalf of the French Borrowers that are funded by the French Revolving Lenders, except that all payments thereon shall be payable to the ~~general deposit accounts of such Borrower maintained~~ French Swingline Lender solely for its own account. No French Swingline Lender shall make any French Swingline Loan if, after giving effect thereto, the Borrowers would not be in compliance with the Revolving Exposure Limitations or the aggregate Dollar Amount of all Swingline ~~Lender for~~ Loans would exceed $30,000,000. All French Swingline Loans shall be Overnight LIBO Borrowings. (e) Upon the ~~Swingline Loan (or, in the case~~ making of a Swingline Loan ~~made~~ (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to ~~finance the reimbursement of an LC Disbursement as provided in Section 2.05(f)~~such Swingline Loan) under any Facility, each Lender under such Facility, shall be deemed, without further action by ~~remittance~~ any party hereto, to have unconditionally and irrevocably purchased from the applicable ~~Issuing Bank) by 3:00 p.m.~~Swingline Lender, ~~New York City~~ without recourse or warranty, an undivided interest and participation in the applicable Swingline Loan in proportion to its Applicable Percentage. The applicable Swingline Lender may, at any time, require the applicable Lenders to fund, in the currency in which the applicable Swingline Loan was denominated, their participations. From and after the date, if any, on which any Lender is required to fund its participation in any Swingline Loan purchased hereunder, the ~~requested date~~ Applicable Administrative Agent shall promptly distribute to such Lender such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the Applicable Administrative Agent in respect of such Swingline Loan. (cf) ~~The~~ Each Applicable Administrative Agent, on behalf of the U.S. Swingline Lender, the Canadian Swingline Lender, the French Swingline Lender ~~may~~ and the U.K. Swingline Lender, as applicable, shall request settlement (a “Settlement”) with the Lenders under the applicable Facility, on at least a weekly basis or on any more frequent date that the Applicable Administrative Agent elects, by ~~written notice given~~ notifying the applicable Lenders of such requested Settlement by facsimile, telephone or e-mail no later than 12:00 noon, Local Time, (i) on the date of such requested Settlement (the “Settlement Date”), with regard to U.S. Swingline Loans, (ii) two Business Days prior to the Settlement Date, with regard to Canadian Swingline Loans (or on the date of such requested Settlement, if a Default or an Event of Default has occurred and is continuing), and (iii) three Business Days prior to the Settlement Date, with regard to U.K. Swingline Loans and French Swingline Loans (or on the date of such requested Settlement, if a Default or an Event of Default has occurred and is continuing). Each Revolving Lender under the applicable Facility (other than the Swingline Lenders, in the case of the Swingline Loans, which shall be deemed to have transferred its Applicable Percentage) shall transfer, in the currency in which the applicable Loan was denominated, the amount of such Lender’s Applicable Percentage of the outstanding principal amount of the applicable Swingline Loan with respect to which Settlement is requested to the Applicable Administrative Agent to an account of the Applicable Administrative Agent as it may designate, not later than 2:00 p.m., ~~New York City time~~Local Time, on ~~any Business Day require~~ such Settlement Date. Settlements may occur during the ~~Revolving Lenders~~ existence of a Default and whether or not the applicable conditions precedent set forth in Section 4.02 have then been satisfied. Such amounts transferred to ~~acquire participations on such Business Day in all or a portion~~ the Applicable Administrative Agent shall be applied against the amounts of the applicable Swingline Lender’s Swingline Loans ~~outstanding. Such notice shall specify the aggregate amount of~~ and, together with such Swingline ~~Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the~~ Lender’s Applicable Percentage of such Swingline Loan, shall constitute Revolving Loans of such applicable Lenders (which shall be an ABR Loan, in the case of any U.S. Swingline Loan and Dollar denominated Canadian Swingline Loans, a Canadian Prime Rate Loan in the case of Canadian Dollar denominated Swingline Loans and a Eurodollar Loan in the relevant currency with an Interest Period of one week, in the case of any French Swingline Loan or U.K. Swingline Loan), and shall no longer constitute Swingline Loans. ~~Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above,~~ If any such amount referred to ~~pay~~ in this paragraph (f) is not transferred to the Applicable Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected Agent by any ~~circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each~~ applicable Lender on such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the BorrowersSettlement Date, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such applicable Swingline Lender shall ~~have been reduced~~ be entitled to ~~zero. Notwithstanding the effectiveness of any~~ recover such ~~termination, the terminated Swingline~~ amount on demand from such Lender ~~shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement~~ together with ~~respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~interest thereon as specified in Section 2.07.

Appears in 1 contract

Samples: Credit Agreement (TMS International Corp.)

Swingline Loans. (a) ~~Subject~~ The Swingline Lender is authorized by the Lenders and shall, subject to the ~~terms and conditions set forth herein (including Section 2.22)~~provisions of this Section, ~~in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to~~ make Swingline Loans up to the ~~Borrowers from time to time during~~ Swingline Sublimit in the ~~Revolving Availability Period denominated in dollars in an~~ aggregate ~~principal amount~~ outstanding at any time ~~outstanding that will not result in~~ consisting of only Domestic Prime Rate Loans, upon a notice of Borrowing (iwhich may be telephonic) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify received by the Administrative Agent and the Swingline Lender ~~of such request~~ (~~i) by telephone (confirmed in writing) or by facsimile (confirmed by telephone)~~which notice, ~~not later than 10:00 a.m., New York City time, or, if agreed by~~ at the Swingline Lender’s discretion, ~~2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall~~ may be ~~irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not~~ submitted prior to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 1:00 p.m., New York ~~City~~ time, on the ~~requested date of~~ Business Day on which such Swingline ~~Loan~~Loan is requested) provided further that the Swingline Lender shall not be obligated to make any Swingline Loan at any time when any Lender is at such time a Deteriorating Lender hereunder, unless the Swingline Lender has entered into satisfactory arrangements with the Borrowers or such Lender to eliminate the Swingline Lender’s risk with respect to such Lender. Swingline Loans shall be subject to periodic settlement with the Lenders under Section 2.7 below; provided, however, that during the months of November and December of each calendar year the Administrative Agent shall settle Swingline Loans at such times as it shall determine, in its discretion. (cb) The Swingline Lender ~~may by written notice given to~~ shall, at the ~~Administrative Agent not later than 2:00 p.m.~~Lead Borrower’s request, ~~New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the~~ make Swingline Loans ~~outstanding. Such notice shall specify the aggregate amount of Swingline Loans~~ (A) in ~~which Revolving Lenders will participate. Promptly~~ reliance upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers~~) in respect of a Swingline Loan after receipt by~~ ’ actual or deemed representations under Section 4.2 that the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers applicable conditions for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent Borrower, executed by the Borrowers, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement borrowing are satisfied and (iiB) ~~references herein to~~ for Permitted Overadvances. If the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.conditions for

Appears in 1 contract

Samples: Credit Agreement (Genesco Inc)

Swingline Loans. ~~(a)~~ Subject to ~~the terms~~ and ~~conditions set forth herein (including Section 2.22), in reliance~~ upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrowers from time to time during the Revolving Availability Period denominated in dollars in an aggregate principal amount at any time outstanding that will not result in (i) subject to Section 9.04(b)(ii), the Applicable Fronting Exposure of any Swingline Lender exceeding its Revolving Commitment, (ii) the aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the aggregate amount of Swingline Loans outstanding exceeding Swingline Sublimit; provided that the Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the ~~Borrowers may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent and the~~ Swingline Lender ~~of such request (i) by telephone (confirmed~~ in writing) or by facsimile (confirmed by telephone), not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 2:00 p.m. New York City time on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan and (x) if the funds are not its individual capacity agrees to be credited to a general deposit account of such Borrower maintained with the Swingline Lender because such Borrower is unable to maintain a general deposit account with the Swingline Lender under applicable Requirements of Law, the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such LC Disbursement. The Swingline Lender shall make each Swingline Loan available to such Borrower by means of a credit to the general deposit accounts of such Borrower maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrowers (or other Person on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrowers, if and to the extent such payment is required to be refunded to the Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof. (d) The Parent Borrower maymake, at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to each Revolving Borrower, which Swingline Loans: (i) shall be denominated in Dollars or Euros, in each case, as elected by the respective Revolving Borrower; (ii) shall be made and maintained as Base Rate Loans or, in the case of Euro Denominated Swingline Loans, EuroEurocurrency Rate Loans; (iii) may be repaid and reborrowed in accordance with the provisions hereof; (iv) shall not exceed in aggregate principal amount at any time outstanding (for this purpose, using the Dollar Equivalent of all Euro Denominated Swingline Loans) in respect of all Revolving Borrowers, when added to the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding (for this purpose, using the Dollar Equivalent of each Primary Alternate Currency Revolving Loan then outstanding and exclusive of Revolving Loans and Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, such Swingline Loans) and (II) the aggregate amount of all Letter of Credit Obligations (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, such Swingline Loans) at such time, ~~designate as additional~~ an amount equal to the Total Revolving Loan Commitment at such time; (v) shall not exceed in aggregate principal amount at any time outstanding (for this purpose, using the Dollar Equivalent of all Euro Denominated Swingline ~~Lenders one or more~~ Loans) in respect of all Revolving ~~Lenders that agree~~ Borrowers, the Maximum Swingline Amount. Notwithstanding anything to ~~serve~~ the contrary contained in ~~such capacity as provided below. The acceptance by a Revolving~~ this Section 2.01(g), the Swingline Lender ~~of an appointment as~~ will not make a Swingline ~~Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Parent~~ Loan after it has received written notice from any Borrower~~, executed by the Borrowers~~, the Administrative Agent ~~and~~ or the Required Lenders stating that a Default or an Event of Default exists until such ~~designated Swingline Lender, and, from and after~~ time as the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder. (e) The Parent Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have ~~been reduced to zero. Notwithstanding~~ received written notice of (x) rescission of all such notices from the ~~effectiveness~~ party or parties originally delivering such notice or notices or (y) the cure or waiver of ~~any~~ such ~~termination,~~ Default or Event of Default in accordance with the ~~terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights~~ requirements of ~~a Swingline Lender under~~ this ~~Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans~~Agreement.

Appears in 1 contract

Samples: Credit Agreement (Silgan Holdings Inc)

Common use of Swingline Loans Clause in Contracts