Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans. (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 3 contracts
Samples: Credit Agreement (Cloud Peak Energy Resources LLC), Credit Agreement (Cloud Peak Energy Resources LLC), Credit Agreement (Cloud Peak Energy Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, including without limitation Section 2.16, the Swingline Lender agrees to make Swingline Loans denominated in Dollars to the Borrower from time to time Borrower, during the Availability Periodperiod 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 lesser (such lesser amount being referred to as the “Swingline Availability”) of (i) $50,000,000, as such amount may be reduced from time to time in accordance with the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or terms hereof and (ii) the sum Revolving Commitment of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make in its capacity as a Revolving Lender minus the aggregate outstanding principal amount of Revolving Loans of the Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth hereinLender in its capacity as a Revolving Lender; provided, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreementhowever, the Swingline Lender shall not be obligated to make any Swingline Loan Loans if the aggregate principal amount at a such time when a Lender is a Defaulting Lender unless the of its outstanding Revolving Loans and Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate Loans together with the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Revolving Commitment Percentage of the Stated Amount of all issued and outstanding Letters of Credit exceeds the then Commitment of the Swingline Loans.
(b) To request a Lender. If at any time the aggregate principal amount of the Swingline LoanLoans outstanding at such time exceeds the Swingline Availability at such time, the Borrower shall notify immediately pay the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Lender the amount of such Swingline Loan or Loansexcess. Each Lender acknowledges Subject to the terms and agrees that its obligation to acquire participations in conditions of this Agreement, the Borrower may borrow, repay and reborrow 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lendershereunder. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the Borrower) in respect borrowing of a Swingline Loan after receipt by the Swingline Lender shall not constitute usage of any Revolving Lender’s Revolving Commitment for purposes of calculation 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 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereoffee payable under Section 3.5(b).
Appears in 3 contracts
Samples: Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.), Credit Agreement (LGI Homes, Inc.), Second Amendment to Fifth Amended and Restated Credit Agreement (LGI Homes, Inc.)
Swingline Loans. (ai) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower may, from time to time, at its sole election and without prior notice to or consent by any Lender or Borrower, convert any request or deemed request by Borrower for a Revolving Loan that is a Base Rate Loan into a request for an advance made by, and for the account of, Swingline Lender in accordance with the terms of this Agreement (each such advance, a “Swingline Loan”). Each Swingline Loan shall be a Base Rate Loan, and shall be advanced by Swingline Lender in the same manner as Revolving Loans are advanced hereunder, in accordance with the provisions of Section 2.2(b). Swingline Lender shall have the right (but not the obligation) to advance Swingline Loans regardless of whether the conditions precedent set forth in Section 8.3 are then satisfied, including the existence of any Default or Event of Default either before or after giving effect to the making of such Swingline Loan; provided, that Swingline Lender shall not advance any Swingline Loan if the Swingline Loan Outstandings exceed the Swingline Loan Limit, either before or after giving effect to the making of any proposed Swingline Loan. If at any time during the Availability PeriodSwingline Loan Outstandings exceed the Swingline Loan Limit, then, on the next succeeding Business Day, Borrower shall repay Revolving Loans and/or Swingline Loans or cash collateralize Letter of Credit Liabilities in the manner specified in Section 2.5(e) or cancel outstanding Letters of Credit, or any combination of the foregoing, in an aggregate principal amount at equal to such excess.
(ii) Swingline Lender shall give Administrative Agent prompt notice of each Swingline Loan advanced by Swingline Lender. In the event that on any time Business Day Swingline Lender desires that all or any portion of the outstanding Swingline Loans should be reduced, in whole or in part, Swingline Lender shall notify Administrative Agent to that will not result effect and indicate the portion of the Swingline Loan to be so reduced. Administrative Agent agrees to transmit to Revolving Lenders the information contained in (i) each notice received by Administrative Agent from Swingline Lender regarding the aggregate principal amount reduction of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum and shall concurrently notify such Lenders of each such Lender’s Pro Rata Share of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required obligation to make a Swingline Revolving Loan to refinance an repay outstanding Swingline LoanLoans (or the applicable portion thereof). Within Each of the foregoing limits Revolving Lenders, other than any Revolving Lender that was a Non-Funding Revolving Lender at the time the applicable Swingline Loans were advanced, hereby unconditionally and subject irrevocably agrees to fund to the terms and conditions set forth hereinPayment Account, for the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the benefit of Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City noon (Chicago time, ) on the day Business Day immediately following the Business Day of such Lender’s receipt of such notice from Administrative Agent (provided that if any Revolving Lender shall receive such notice at or prior to 10:00 a.m. (Chicago time) on a Business Day, such funding shall be made by such Lender on such Business Day), such Lender’s Pro Rata Share of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date Revolving Loan (which Revolving Loan shall be a Business DayBase Rate Loan and shall be deemed to be requested by Borrower) and in the principal amount of such portion of the requested Swingline LoanLoan which is required to be paid to Swingline Lender under this Section 2.2(e). The Administrative Agent will promptly advise the Swingline Lender proceeds of any such notice received from Revolving Loans shall be immediately paid over to Administrative Agent for the Borrowerbenefit of Swingline Lender for application against then outstanding Swingline Loans. The For purposes of this clause (ii), Swingline Lender shall make each Swingline Loan available be conclusively entitled to assume that, at the Borrower by means of a credit to the general deposit account time of the Borrower with the Swingline Lender (or, in the case advance of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such any Swingline Loan, each Revolving Lender, other than any then existing Non-Funding Revolving Lender, will fund its Pro Rata Share of the Revolving Loans provided for in this clause (ii).
(ciii) The In the event that, at any time any Swingline Loans are outstanding, either (1) an Event of Default pursuant to either Section 9.1(f) or 9.1(g) has occurred or (2) the Revolving Loan Commitment has been suspended or terminated in accordance with the provisions of this Agreement, then in either case, each of the Revolving Lenders (other than Swingline Lender may and any Revolving Lender that was a Non-Funding Revolving Lender at the time the applicable Swingline Loans were advanced) shall be deemed to have irrevocably and immediately purchased and received from Swingline Lender, without recourse or warranty, an undivided interest and participation in the Swingline Loan in an amount equal to such Lender’s Revolving Loan Commitment Percentage (but recalculated to disregard any interest of any Non-Funding Revolving Lender in the Revolving Loans) multiplied by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion total amount of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay Any purchase obligation arising pursuant to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is immediately preceding sentence shall be absolute and unconditional and shall not be affected by any circumstance circumstances whatsoever. In the event that on any Business Day Swingline Lender desires to effect settlement of any such purchase, including Swingline Lender shall promptly notify Administrative Agent to that effect and indicate the occurrence payment amounts required by each Lender to effect such settlement. Administrative Agent agrees to transmit to Revolving Lenders the information contained in each notice received by Administrative Agent from Swingline Lender and continuance shall concurrently notify such Lenders of a Default or reduction or termination each such Lender’s Pro Rata Share of the Commitmentsrequired payment settlement amount. Each such Lender (other than Non-Funding Revolving Lenders, and as specified above) shall effect such settlement upon receipt of any such notice by transferring to the Payment Account not later than noon (Chicago time) on the Business Day immediately following the Business Day of receipt of such notice (provided that each if any such payment Lender shall receive such notice at or prior to 10:00 a.m. (Chicago time) on a Business Day, such funding shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 on such Business Day), an amount equal to such Lender’s participation in the Swingline Loan.
(iv) In the event any Revolving Lender (other than Non-Funding Revolving Lenders, as specified above) fails to make available to Swingline Lender when due the amount of such Lender’s participation in the Swingline Loans, Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest at the Federal Funds Rate, for the first three (3) days following the due date, and thereafter at the Base Rate plus the Base Rate Margin in respect of Swingline Loans. Any Lender’s failure to make any payment requested under this Section 2.06 2.2(e) shall applynot relieve any other Lender of its obligations hereunder, mutatis mutandis, but no Lender shall be responsible for the failure of any other Lender to the make available to Swingline Lender such other Lender’s required payment hereunder. The obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to Lenders under this paragraph, and thereafter payments in respect of such Swingline Loan Section 2.2(e) shall be made deemed to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 binding upon Administrative Agent, as applicable, if Swingline Lender and to Lenders notwithstanding the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower occurrence of any default in the payment thereofDefault or Event of Default, or any insolvency or bankruptcy proceeding pertaining to Borrower or any other Credit Party.
Appears in 3 contracts
Samples: Credit Agreement (Sport Supply Group, Inc.), Credit Agreement (Collegiate Pacific Inc), Credit Agreement (Collegiate Pacific Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, in order to reduce the Swingline Lender agrees frequency of transfers of funds from Lenders to Agent for making Revolving Credit Loans, Agent shall be permitted (but not required) to make Swingline Revolving Credit Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in Borrowers upon request by Borrowers (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total such Revolving Credit Exposures exceeding the total Commitments; Loans to be designated as “Swingline Loans”) 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 at any time will not (i) exceed $5,000,000; (ii) when added to the 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 the principal amount of all other Revolving Credit Loans then outstanding plus the LC Amount, exceed the Borrowing Base. Within the foregoing limits, each Borrower may borrow, 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) notwithstanding anything herein to the contrary (other than as set forth in which 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 will participate. Promptly upon receipt receive notice from Agent that a Swingline Loan has been advanced in respect of such noticea drawing under a Letter of Credit or LC Guaranty or (2) in any other circumstance, demand is made by Agent during the Administrative Agent will give notice thereof 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 each Lender, specifying in such notice the extent of such Lender’s Applicable Revolving Loan Percentage thereof, by paying to Agent, in same day funds, an amount equal to such Lender’s Revolving Loan Percentage of such Swingline Loan. Swingline Loans will be settled between the Agent and the Lenders in the manner set forth in subsection 3.1.3. Borrowers, Agent and the Lenders hereby agree that any and all “Swingline Loans” under and as defined in the Original Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice Agreement that are outstanding 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 Loans. Each Lender acknowledges and agrees that its obligation Closing Date shall be deemed to acquire participations in be 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender shall comply with its obligation advanced 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofAgreement.
Appears in 3 contracts
Samples: Loan and Security Agreement (Neenah Foundry Co), Loan and Security Agreement (Neenah Foundry Co), Loan and Security Agreement (Neenah Foundry Co)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees in its individual capacity agrees, at any time and from time to time on and after the Closing Date, to make a loan or loans (each a “Swingline Loans Loan” and, collectively, the “Swingline Loans”) to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 50,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total CommitmentsTotal Commitment; provided that (A) each Swingline Loan shall be in a minimum amount of $1,000,000 and shall be repayable in full as provided in Section 2.09, and (B) 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m.12:00 noon, New York City York, New York, time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute irrevocable and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of the CommitmentsTotal Commitment, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 for the account of the Lenders and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the Administrative AgentAgent for the account of the Lenders; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 3 contracts
Samples: Credit Agreement (Kinder Morgan, Inc.), Revolving Credit Agreement (Kinder Morgan, Inc.), Revolving Credit Agreement (Kinder Morgan, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, including without limitation Section 2.16, the Swingline Lender agrees to make Swingline Loans denominated in Dollars to the Borrower from time to time Borrower, during the Availability Periodperiod 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 lesser (such lesser amount being referred to as the “Swingline Availability”) of (i) $15,000,000, as such amount may be reduced from time to time in accordance with the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or terms hereof and (ii) the sum Revolving Commitment of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make in its capacity as a Revolving Lender minus the aggregate outstanding principal amount of Revolving Loans of the Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth hereinLender in its capacity as a Revolving Lender; provided, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreementhowever, the Swingline Lender shall not be obligated to make any Swingline Loan Loans if the aggregate principal amount at a such time when a Lender is a Defaulting Lender unless the of its outstanding Revolving Loans and Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate Loans together with the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Revolving Commitment Percentage of the Stated Amount of all issued and outstanding Letters of Credit exceeds the then Commitment of the Swingline Loans.
(b) To request a Lender. If at any time the aggregate principal amount of the Swingline LoanLoans outstanding at such time exceeds the Swingline Availability at such time, the Borrower shall notify immediately pay the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Lender the amount of such Swingline Loan or Loansexcess. Each Lender acknowledges Subject to the terms and agrees that its obligation to acquire participations in conditions of this Agreement, the Borrower may borrow, repay and reborrow 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lendershereunder. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the Borrower) in respect borrowing of a Swingline Loan after receipt by the Swingline Lender shall not constitute usage of any Revolving Lender’s Revolving Commitment for purposes of calculation 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 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereoffee payable under Section 3.5(b).
Appears in 3 contracts
Samples: Credit Agreement (LGI Homes, Inc.), Credit Agreement (LGI Homes, Inc.), Credit Agreement (LGI Homes, Inc.)
Swingline Loans. (ai) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time the Effective Date and prior to time during the Availability Period, Facility Termination Date in an aggregate principal amount at any time outstanding that will not result in (ix) the aggregate principal amount of outstanding Swingline Loans Exposure exceeding $10,000,000 5,000,000, or (iiy) the sum of Swingline Exposure exceeding the total difference between the Aggregate Revolving Commitment and the Aggregate Outstanding Revolving Credit Exposures exceeding the total Commitments; Exposure, 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(bii) To request a Swingline Loan, the Borrower shall notify give the Administrative Agent and the Swingline Lender irrevocable notice of such request by telephone (confirmed by telecopy), not later than 12:00 noonnoon (Columbus, New York City Ohio time, ) on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date of disbursement (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit at the Administrative Agent’s address specified pursuant to the general deposit account of the Borrower with the Swingline Lender Section 12.14 (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)Disbursement, by remittance to the relevant Issuing BankLC Issuer) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ciii) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.noon (Columbus, New York City Ohio time, ) on any Business Day 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 such Revolving Lender’s Applicable Percentage of such Swingline Loan or 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 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 Unmatured Default or the reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. 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 2.6 with respect to Loans made by such Lender (and Section 2.06 2.6 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Samples: Credit Agreement (Airnet Systems Inc), Credit Agreement (Airnet Systems Inc)
Swingline Loans. (ai) Subject to the terms and conditions set forth herein, the Agent may convert any request by Borrowing Agent for a Revolving Advance into a request for a Swingline Lender agrees to make Loan. The Swingline Loans to shall be Domestic Rate Loans each in a minimum amount of $100,000 and in integral multiples of $100,000 in excess thereof and shall not exceed in the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding the Maximum Swingline Loan Amount. In the event that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the on any Business Day 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 desires that all or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage portion of the outstanding Swingline LoansLoans should be reduced in whole or in part, Swingline Lender shall promptly notify Agent to that effect and indicate the portion of the Swingline Loans to be reduced. Swingline Lender hereby agrees that it shall notify Agent to reduce the outstanding Swingline Loans to $0 at least twice every month. Agent agrees to promptly transmit to the Revolving Lenders the information contained in each notice received by Agent from Swingline Lender and shall concurrently notify Revolving Lenders of each Revolving Lender's Revolving Commitment Percentage of the obligation to make a Revolving Advance to repay the Swingline Loan (or portion thereof).
(bii) To request a Each of the Revolving Lenders hereby unconditionally and irrevocably agrees to fund to Agent for the benefit of Swingline LoanLender, in lawful money of the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy)United States and in same day funds, not later than 12:00 noon, New York City 1:00 p.m. Milwaukee time, on the day Settlement Date, such Revolving Lender's Revolving Commitment Percentage of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date Revolving Advance (which Revolving Advance shall be a Business DayDomestic Rate Loan and shall be deemed to be requested by Borrowing Agent) and in the principal amount of such portion of the requested Swingline LoanLoans which is required to be paid to Swingline Lender under this subsection 2.1(c) (regardless of whether the conditions precedent thereto set forth in Section 8 are then satisfied and whether or not Borrowing Agent has provided a notice of borrowing under Section 2.2 and whether or not any Default or Event of Default exists or all or any of the Advances have been accelerated, but subject to the other provisions of this Section 2.1(c)). The Administrative Agent will promptly advise the Swingline Lender proceeds of any such notice received from Revolving Advance shall be immediately paid over to Agent for the Borrower. The benefit of Swingline Lender shall make each Swingline Loan available for application to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ciii) The In the event that an Event of Default shall occur and either (i) such Event of Default is of the type described in subsection 10.6 or 10.8 hereof or (ii) no further Revolving Advances are being made under this Agreement, so long as any such Event of Default is continuing, then, each of the Revolving Lenders (other than Swingline Lender) shall be deemed to have irrevocably, unconditionally and immediately purchased from Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion Revolving Lender's Revolving Commitment Percentage of the Swingline Loans outstandingLoan outstanding as of the date of the occurrence of such Event of Default. Such notice Each Revolving Lender shall specify effect such purchase by making available an amount equal to its participation on the aggregate date of such purchase in Dollars in immediately available funds to Agent for the benefit of Swingline Lender. In the event any Revolving Lender fails to make available to Swingline Lender when due the amount of such Revolving Lender's participation in the Swingline Loans in which Lenders will participate. Promptly upon receipt of Loan, Swingline Lender shall be entitled to recover such notice, amount on demand from such Revolving Lender together with interest at the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or LoansFederal Funds Effective Rate. Each such purchase by a Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, shall be made without recourse to pay to the Administrative Agent, for the account of the Swingline Lender, such without representation or warranty of any kind, and shall be effected and evidenced pursuant to documents reasonably acceptable to Swingline Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in The Swingline Loans pursuant to shall be evidenced by one or more promissory notes substantially in the form of Exhibit 2.1(c). The obligations of the Revolving Lenders under this paragraph is absolute Section 2.1(c) shall be absolute, irrevocable and unconditional unconditional, shall be made under all circumstances and shall not be affected by any circumstance whatsoeveraffected, including the occurrence and continuance of a Default reduced or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower impaired for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofreason whatsoever.
Appears in 2 contracts
Samples: Loan and Security Agreement (Bucyrus International Inc), Loan and Security Agreement (Bucyrus International Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, during the period from the Effective Date to but excluding the Revolving Loan Termination Date, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any one time outstanding that will up to, but not result in (i) exceeding, the amount of the Swingline Commitment. If at any time the aggregate principal amount of outstanding the Swingline Loans exceeding $10,000,000 or (ii) outstanding at such time exceeds the sum Swingline Commitment in effect at such time, the Borrower shall immediately pay the Agent for the account of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loanthe amount of such excess. Within the foregoing limits and subject Subject to the terms and conditions set forth hereinof this Agreement, the Borrower may borrow, prepay repay and reborrow Swingline LoansLoans hereunder. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement2.3., the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a any other Revolving Loan Lender is a Defaulting Lender, unless the Swingline Lender unless is satisfied that the participation therein will otherwise be fully allocated to Revolving Loan Lenders that are Non-Defaulting Lenders consistent with Section 3.11.(c) and the Revolving Loan Lender that is the Defaulting Lender shall not participate therein, except to the extent the Swingline Lender has entered into arrangements with the Borrower or such Defaulting Lender that are satisfactory to it and the Borrower Swingline Lender in its good faith determination to eliminate the Swingline Lender’s risk Fronting Exposure with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing any such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 delivery of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofcash collateral.
Appears in 2 contracts
Samples: Credit Agreement (Kite Realty Group, L.P.), Credit Agreement (Kite Realty Group Trust)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower Borrowers from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 40,000,000, or (ii) the sum of the total ABL Revolving Credit Exposures exceeding the total CommitmentsABL Line Cap; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Each Swingline Loan shall be in an integral multiple of $100,000 and not less than $500,000 or such lesser amount as may be agreed by the Administrative Agent. The Borrowers may request, and the Swingline Lender may make, a Swingline Loan notwithstanding that the Borrowers have not borrowed up to the full amount of the FILO Line Cap at the time of such request. Any Swingline Loan advanced by the Swingline Lender is made in reliance on the agreements of the other Lenders set forth in this Agreement. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower Agent shall notify the Swingline Lender (with a copy to the Administrative Agent Agent) of such request by telephone (confirmed by telecopyfacsimile), not later than 12:00 noon2:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerBorrowers. The Swingline Lender shall make each Swingline Loan available to the Borrower Borrowers by means of a credit to the general deposit account Funding Account or otherwise in accordance with the instructions of the Borrower with the Swingline Lender Agent (orincluding, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the relevant applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(cb) The If any Swingline Loans are outstanding on any Business Day, the Swingline Lender may by (or shall, with respect to any Swingline Loans that have been outstanding for five Business Days) deliver written notice given to the Administrative Agent not later than 10:00 a.m.12:00 p.m., New York City time, on any Business Day require requiring that the ABL Revolving Lenders to acquire participations make ABL Revolving Loans that are ABR Loans on such Business Day in all or a portion an amount equal to the amount of the such Swingline Loans outstanding. Such notice shall specify (the aggregate amount of “Refunded Swingline Loans in which Lenders will participate. Promptly Loans”) outstanding on such Business Day and based upon their ABL Applicable Percentages; provided that (i) promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in ABL Revolving Lender and (ii) the ABL Revolving Lenders shall not be required to make such notice ABL Revolving Loans to the extent (but only to the extent) that such Lender’s Applicable Percentage of such Swingline Loan or LoansABL Revolving Loans would cause the aggregate ABL Revolving Exposure to exceed the aggregate ABL Revolving Commitments. Each ABL Revolving Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice as provided above, to pay to from the Administrative Agent, for the account of the Swingline Lender, Agent to make such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline ABL Revolving Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoeverparagraph. Notwithstanding anything herein to the contrary, including (i) the occurrence and continuance proceeds of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 ABL Revolving Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan ABL Revolving Lenders shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted immediately delivered by the Administrative Agent to the Lenders that Swingline Lender and applied to repay a corresponding portion of the Refunded Swingline Loans and (ii) on the day such ABL Revolving Loans are made, such portion of the Refunded Swingline Loans paid shall no longer be outstanding as Swingline Loans. Notwithstanding the terms of Section 2.02, if any Swingline Loans remain outstanding upon the termination of the ABL Revolving Commitments, and if ABL Excess Availability is greater than zero, upon such termination of the ABL Revolving Commitments, the Swingline Lender shall be deemed to have made their payments pursuant sold to this paragraph each ABL Revolving Lender, and each ABL Revolving Lender shall be deemed unconditionally and irrevocably to have so purchased from the Swingline Lender, without recourse or warranty, an undivided interest and participation, to the extent of such ABL Revolving Lender’s ABL Applicable Percentage in the lesser of (i) such ABL Excess Availability and (ii) such undivided interest and participation of each ABL Revolving Lender in such outstanding Swingline Loans.
(c) To the extent a Swingline Lender is also a ABL Revolving Lender hereunder, in no event will the Swingline Lender, in its capacity as their interests may appeara ABL Revolving Lender, be required to purchase participations from itself or be required to fund any Refunded Swingline Loans; provided that any such payment so remitted rather if the settlement procedures described in clauses (b) or (c) above are invoked, then the Swingline Lender’s exposure with respect to its Pro Rata Share as a ABL Revolving Lender hereunder shall be repaid deemed automatically converted to the a participation or Refunded Swingline Lender or to the Administrative AgentLoan, as applicable, if and its exposure in its capacity as the Swingline Lender correspondingly reduced by such conversion.
(d) Notwithstanding the foregoing provisions of this Section 2.05 and any other provision to the contrary in this Agreement, so long as and to the extent such payment that FILO Excess Availability is required to greater than zero, Swingline Loans made by the Swingline Lender shall be refunded refinanced by Revolving Loans made by FILO Lenders under the FILO Facility rather than by ABL Revolving Lenders under the ABL Revolving Facility up to the Borrower for any reason. The purchase amount of participations the then applicable FILO Excess Availability in a Swingline Loan pursuant accordance with the procedures set forth in Section 2.05(b) as if the provisions of such Section and each other provision of this Section 2.05 made reference to this paragraph shall not relieve the Borrower of any default in FILO Lenders and applicable related FILO Facility specific terms rather than the payment thereofABL Revolving Lenders and applicable related ABL Revolving Facility specific terms.
Appears in 2 contracts
Samples: Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the each Swingline Lender agrees may agree, but shall have no obligation, to make Swingline Loans in Dollars to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or the Swingline Sublimit, (ii) subject to Section 2.04, such Swingline Lender’s Revolving Credit Exposure exceeding its Revolving Commitment or (iii) the sum Dollar Amount of the total Total Revolving Credit Exposures Exposure exceeding the total aggregate Revolving Commitments; provided that the no 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the applicable Swingline Lender (with a copy to the Administrative Agent Agent) of such request by (A) telephone or (B) by a Borrowing Request (provided that any telephonic notice must be confirmed promptly by telecopy), delivery to the applicable Swingline Lender and the Administrative Agent of a Borrowing Request) not later than 12:00 noon3:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) ), Type and amount (which shall be a minimum of $100,000) of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. 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 available to the Borrower by means of a credit to the general deposit an account of the Borrower with the Swingline Lender Administrative Agent designated for such purpose (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.06(f), by remittance to the relevant Issuing Bankapplicable L/C Issuer) by 3:00 5:00 p.m., New York City 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 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 such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice as provided abovefrom the Administrative Agent (and in any event, if such notice is received by 1:00 p.m., New York City time, on a Business Day, no later than 3:00 p.m., New York City time, on such Business Day and if received after 3:00 p.m., New York City time, on a Business Day, no later than 10:00 a.m., New York City time, on the immediately succeeding Business Day), to pay in Dollars to the Administrative Agent, for the account of such Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Notwithstanding the foregoing, upon the occurrence of (i) the Revolving Credit Maturity Date, (ii) any Event of Default described in Section 7.01(f), (iii) the date on which the Loans are accelerated, or (iv) the termination of the Revolving Commitments, each Revolving Lender shall be deemed to absolutely and unconditionally acquire participations in all of the Swingline Loans outstanding at such time in an amount equal to its Applicable Percentage of such Swingline Loans in each case without notice or any further action from any Swingline Lender, any Lender or the Administrative Agent (such occurrence an “Automatic Participation Event”). Upon the occurrence of an Automatic Participation Event, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice from the Administrative Agent (and in any event, if such notice is received by 3:00 p.m., New York City time, on a Business Day, no later than 5:00 p.m., New York City time, on such Business Day and if received after 3:00 p.m., New York City time, on a Business Day, no later than 10:00 a.m., New York City time, on the immediately succeeding Business Day), to pay to the Administrative Agent, for the account of the such Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. 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 Lenders), and the Administrative Agent shall promptly pay to the such Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the 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 such Swingline Lender. Any amounts received by the such Swingline Lender from the Borrower (or other party on behalf of the 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 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 applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in obligation with respect to the payment thereof.
(d) Any Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender and 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, the Borrower 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 replacement, (i) the successor Swingline Lender shall have all the rights and obligations of 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 refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the 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 its replacement, but shall not be required to make additional Swingline Loans.
(e) Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline Xxxxxx may resign as a Swingline Xxxxxx at any time upon thirty (30) days’ prior written notice to the Administrative Agent, the Borrower and the Revolving Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.05(d) above.
Appears in 2 contracts
Samples: Credit Agreement (Phinia Inc.), Credit Agreement (Phinia Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the including without limitation Section 2.16., each Swingline Lender severally agrees to make Swingline Loans in Dollars to the Borrower from time to time Borrower, during the Availability Periodperiod 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 lesser (such lesser amount being referred to as the “Swingline Availability”) of (i) $60,000,000 for such Swingline Lender, as such amount may be reduced from time to time in accordance with the terms hereof and (ii) the Tranche 1 Revolving Commitment of such Swingline Lender in its capacity as a Tranche 1 Revolving Lender minus the aggregate outstanding principal amount of Tranche 1 Revolving Loans of such Swingline Lender in its capacity as a Tranche 1 Revolving Lender. With respect to any Swingline Lender, if at any time the aggregate principal amount of outstanding the Swingline Loans exceeding $10,000,000 or (ii) held by such Swingline Lender outstanding at such time exceeds the sum Swingline Availability of such Swingline Lender at such time, the Borrower shall promptly pay the Administrative Agent for the account of such Swingline Lender the amount of such excess and, with respect to all Swingline Lenders, if at any time the aggregate principal amount of the total Revolving Credit Exposures exceeding Swingline Loans outstanding at such time exceeds $300,000,000, the total Commitments; provided that Borrower shall promptly pay the Administrative Agent for the account of the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLenders the amount of such excess. Within the foregoing limits and subject Subject to the terms and conditions set forth hereinof this Agreement, the Borrower may borrow, prepay repay and reborrow Swingline LoansLoans hereunder. Notwithstanding anything For the avoidance of doubt, subject to the contrary contained in this Section 2.04 or elsewhere in terms of this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and (i) the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To may request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Loan from one Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall without having to make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of request for a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on from any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the other Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in (ii) outstanding Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not may be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each repaid in such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner order 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofelect.
Appears in 2 contracts
Samples: Credit Agreement (Realty Income Corp), Credit Agreement (Realty Income Corp)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinof this Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, Commitment Period 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 Applicable Percentage of the outstanding amount of Loans and LC Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Commitment; provided, that after giving effect to any amount requested, (i) the aggregate principal amount of all outstanding Swingline Loans exceeding $10,000,000 or does not exceed the Aggregate Commitments, and (ii) the sum aggregate outstanding amount of the total Revolving Credit Exposures exceeding the total 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 hereinLoans of any Lender, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline plus such Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding amount of all LC Obligations, plus such Lender’s Applicable Percentage of the outstanding amount of all Swingline LoansLoans does not exceed such Lender’s Commitment; provided further that the Swingline Lender will not make a Swingline Loan from and after the date which is one (1) day after it has received written notice from the Borrower or any Lender that one or more of the applicable conditions to Credit Extensions specified in Section 4.02 is not then satisfied until such conditions are satisfied or waived in accordance with the provisions of this Agreement (and the Swingline Lender shall be entitled to conclusively rely on any such notice and shall have no obligation to independently investigate the accuracy of such notice and shall have no liability to the Borrower in respect thereof if such notice proves to be inaccurate). The Borrower will have the option to choose whether the Swingline Loan is (A) Base Rate Loan, or (B) a Daily Floating Eurodollar Loan. The aggregate amount of Swingline Loans in any Borrowing shall not be subject to a minimum amount or increment. Each Swingline Loan accruing interest at the Daily Floating Eurodollar Rate shall continue to accrue interest as a Daily Floating Eurodollar Loan at the end of each Interest Period applicable thereto unless and until (x) the Borrower has given notice of conversion to a Base Rate Loan in accordance with Section 2.04, or (y) such Swingline Loan is refunded pursuant to Section 2.02(b).
(b) To request Swingline Loans shall be refunded by the Lenders on demand by the Swingline Lender. Such refundings shall be made by each Lender in accordance with its Applicable Percentage and shall thereafter be reflected as Loans of the Lenders on the books and records of the Administrative Agent. Each Lender shall fund its Applicable Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but in no event later than 1:00 p.m. on the next succeeding Business Day after such demand is made. No Lender’s obligation to fund its Applicable Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Applicable Percentage of a Swingline Loan, the Borrower nor shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of any Lender’s Applicable Percentage be increased as a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender result of any such notice received from the Borrower. The Swingline failure of any other Lender shall make each Swingline Loan available to the Borrower by means fund its Applicable Percentage of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Borrower shall pay to the Swingline Lender may the amount of each Swingline Loan (unless such Swingline Loan is fully refunded by written notice given the Lenders pursuant to Section 2.02(b)): on the earliest to occur of (i) demand by the Swingline Lender and (ii) the Maturity Date. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their Applicable Percentages (unless the amounts so recovered by or on behalf of the Borrower pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Administrative Agent has received notice in the manner required pursuant to Section 10.02 and which such Event of Default has not later than 10:00 a.m.been waived by the Majority Lenders or the Lenders, New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. applicable).
(d) Each Lender acknowledges and agrees that its obligation to acquire participations in refund Swingline Loans pursuant to in accordance with the terms of this paragraph Section 2.02 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination including, without limitation, non-satisfaction of the Commitmentsconditions set forth in Article IV. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.02, one of the events described in subsections (i)(i), (i)(ii) or (i)(iii) of Section 8.01 shall have occurred, each Lender will, on the date the applicable Revolving Credit Loan would have been made, purchase an undivided, irrevocable and unconditional participating interest in the Swingline Loans to be refunded in an amount equal to its Applicable Percentage of the aggregate amount of such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16Swingline Loans. Each Lender shall comply with its obligation under this paragraph by wire will immediately transfer of to the Swingline Lender, in 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 amount of the Lenders)its participation, and the Administrative Agent shall promptly pay to upon receipt thereof, the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the amounts so date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received by it from any Lender such Lender’s participating interest in a Swingline Loan, the LendersSwingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded). The Administrative Agent Notwithstanding the foregoing provisions of this Section 2.02(d), a Lender shall notify the Borrower of any participations in any have no obligation to refund a Swingline Loan acquired pursuant to this paragraphSection 2.02(b) if (i) a Default shall exist at the time such refunding is requested by the Swingline Lender, (ii) such Default had occurred and thereafter payments in respect of was continuing at the time such Swingline Loan shall be was made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from and (iii) such Lender notified the Borrower (or other party on behalf of Swingline Lender in writing, not less than one Business Day prior to the Borrower) in respect of a Swingline Loan after receipt making 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 Lenders Swingline Loan, that shall have such Default has occurred and is continuing and that such Lender will not refund Swingline Loans made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any while 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 Default is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofcontinuing.
Appears in 2 contracts
Samples: Credit Agreement (Energy Transfer Partners, L.P.), Credit Agreement (Energy Transfer Partners, L.P.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make swingline loans (“Swingline Loans Loans”) to the Borrower from time to time during on and after the Availability PeriodClosing Date and until the Latest Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding not to exceed $5,000,000; provided that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a any Swingline Loan to refinance an any outstanding Swingline Loan and (ii) after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall not exceed the Total Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than $50,000 or such lesser amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, any Swingline Loan may be in an aggregate amount that is (1) equal to the entire unused balance of the aggregate unused Revolving Credit Commitments or (2) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(d). Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Swingline Loans may borrowbe borrowed, prepay prepaid and reborrow Swingline Loansreborrowed. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Swingline Lender (with a copy to the Administrative Agent Agent) of such request by telephone (confirmed delivery of a written Borrowing Request, appropriately completed and signed by telecopy)a Responsible Officer of the Borrower, not later than 12:00 noon, New York City time, p.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower on the same Business Day by means of a credit to the general deposit account designated in the related Borrowing Request or otherwise in accordance with the instructions of the Borrower with the Swingline Lender (orincluding, in the case of a Swingline Loan made to finance the reimbursement of an any LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 (and in any event, if such notice is received by 11:00 a.m. on a Business Day, no later than 10:00 4:00 p.m. on such Business Day and if received after 11:00 a.m., New York City time, “on a Business Day” shall mean no later than 9:00 a.m. on the immediately succeeding Business Day) on any Business Day require the Revolving Lenders to acquire participations purchase a participation on such the 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 Revolving Lender, specifying in such notice 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 LenderXxxxxx’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, subject to Section 2.16. Each Revolving Lender shall comply with its obligation under this paragraph by effecting a 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 LendersRevolving Lenders pursuant to this Section 2.04(b)), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations participation in any Swingline Loan acquired pursuant to this paragraphSection 2.04(b), and thereafter payments any payment 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 Borrower (or other party on behalf of the Borrower) 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; , and any such amounts amount received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders each Revolving Lender that shall have has made their payments its payment 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 to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded funded to the Borrower for any reason, such payment shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrower. The purchase of participations in a Swingline Loan pursuant to this paragraph Section 2.04(b) shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Samples: Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 5,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total Revolving 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreementforegoing, the Swingline Lender shall not be obligated to make if at any Swingline Loan at a time when a any Revolving Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Swingline Loans will be reallocated among all Revolving Lenders that are not Defaulting Lenders (pro rata in accordance with their respective Pro Rata Shares) but only to the extent (x) that no non-Defaulting Lender’s share of the Revolving Exposure shall exceed such non-Defaulting Lender’s Revolving Commitment and (y) the conditions set forth in Section 4.02 are satisfied at such time (in which case the Revolving Commitments of all Defaulting Lenders shall be deemed to be zero (except to the extent Cash Collateral has been posted by such Defaulting Lender in respect of any portion of such Defaulting Lender’s participations in Swingline Loans or Defaulting LC Exposures) for purposes of any determination of the Revolving Lenders’ Applicable Percentage respective Pro Rata Shares of the Swingline Loans (including for purposes of all fee calculations hereunder)); provided that if such reallocation cannot be made, the Borrower and such Defaulting Lender, on a joint and several basis, hereby agree, within two Business Days following notice by the Administrative Agent, to cause to be deposited with the Administrative Agent for the benefit of the Swingline Lender Cash Collateral or similar security reasonably satisfactory to such Swingline Lender (in its sole discretion) in the full amount of such Defaulting Lender’s Pro Rata Share of outstanding Swingline Loans. The Borrower and/or such Defaulting Lender hereby grants to the Administrative Agent, for the benefit of the Swingline Lender, a security interest in all such Cash Collateral and all proceeds of the foregoing. Such Cash Collateral shall be maintained as provided in Section 2.05(j). If at any time the Administrative Agent determines that any funds held as Cash Collateral under this paragraph are subject to any right or claim of any Person other than the Administrative Agent for the benefit of the Swingline Lender or that the total amount of such funds is less than the aggregate risk participation of such Defaulting Lender in the applicable Swingline Loan, the Borrower and/or such Defaulting Lender will, promptly upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate risk participation over (y) the total amount of funds, if any, then held as Cash Collateral under this paragraph that the Administrative Agent determines to be free and clear of any such right and claim. If the Revolving Lender that triggers the Cash Collateral requirement under this paragraph ceases to be a Defaulting Lender (as determined by the Swingline Lender in good faith), or if the Swingline Exposures have been permanently reduced to zero, the funds held as Cash Collateral shall thereafter be returned to the Borrower or the Defaulting Lender, whichever provided the funds for the Cash Collateral.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.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 such Lender’s Applicable Percentage of such Swingline Loan or 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 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 reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. 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), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof. Notwithstanding the foregoing, a Revolving 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 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.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Ami Celebrity Publications, LLC), Revolving Credit Agreement (Ami Celebrity Publications, LLC)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability PeriodPeriod in Dollars, in an aggregate principal amount at any time outstanding that will not result in (iA) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or the Swingline Loan Sublimit, (iiB) the sum aggregate principal amount of the total Revolving Credit Exposures exceeding the total CommitmentsRevolving Commitments or (C) the aggregate principal amount of the total Revolving Exposures exceeding the lesser of (x) the total Revolving Commitments and (y) the Availability Limit; provided that (I) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and (II) the Swingline Lender shall not be required to make any Swingline Loan to the extent the aggregate principal amount of the Revolving Loans made by the Lender acting as Swingline Lender that are then outstanding, when aggregated with the aggregate principal amount of Swingline Loans, would exceed the amount of such Lender’s Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent Swingline Lender of such request by telephone (confirmed by telecopytelecopy or transmission by electronic communication), not later than 12:00 noon2:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be in the form attached hereto as Exhibit B‑4 and shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to deposit into the general deposit account of the Borrower with the Swingline Lender Operating Account (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank or, to the extent that the Applicable Participants have made payments pursuant to Section 2.05(e) to reimburse the applicable Issuing Bank, to such Applicable Participants and such Issuing Bank as their interests may appear) 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 10:00 a.m., New York City time, on any Business Day require the Lenders Applicable Participants to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such Each such notice shall specify the aggregate amount of Swingline Loans in which Lenders the Applicable Participants will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each LenderApplicable Participant, specifying in such notice such LenderApplicable Participant’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender Applicable Participant 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 LenderApplicable Participant’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender Applicable Participant 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender Applicable Participant 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 Applicable Participant (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the LendersApplicable Participants), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the LendersApplicable Participants. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders Applicable Participants 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) Any Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the successor Swingline Lender and, to the extent affecting the rights or obligations of the replaced Swingline Lender, such replaced Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.12(a). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the 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 its replacement, but shall not be required to make 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 days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.04(d) above.
Appears in 2 contracts
Samples: Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc)
Swingline Loans. (ai) Subject to the terms and conditions set forth hereinrequirements of this clause (c), the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) so long as the aggregate principal amount of outstanding Swingline Loans exceeding plus the amount of the requested Swingline Loan does not exceed the Maximum Swingline Loan Amount, Borrower may request that Swingline Lender make available to Borrower by transfer of immediately available funds a Swingline Loan. The Swingline Loans shall be advanced by Agent (subject to the requirements of Section 8.2 hereof) as Domestic Rate Loans and shall not exceed in the aggregate at any time outstanding the Maximum Swingline Loan Amount. In the event that on any Business Day, Borrower desires that all or any portion of the outstanding Swingline Loans should be reduced in whole or in part, Borrower shall promptly notify Agent to that effect and indicate the portion of the Swingline Loans to be reduced. Borrower hereby agrees that it shall notify Agent to reduce the outstanding Swingline Loans to $10,000,000 0 at least once every week and, in any event, at any time that the aggregate outstanding principal amount of Swingline Loan equals the Maximum Swingline Loan Amount. Swingline Lender shall notify Agent to reduce the outstanding Swingline Loans to $0 by conversion of such Swingline Loans to Revolving Advances as described in sub-clause (ii) of this Section 2.1(c), at least once each week if Borrower fails to do so. Agent agrees to promptly transmit to Lenders the information contained in each notice received by Agent from Borrower or Swingline Lender and shall concurrently notify Lenders of each Lender’s Commitment Percentage of the obligation to make a Revolving Advance to repay the Swingline Loan (or portion thereof). In no event shall the aggregate outstanding Advances exceed the Maximum Revolving Advance Amount.
(ii) Each of the Lenders hereby unconditionally and irrevocably agrees to fund to Agent for the benefit of Swingline Lender, in lawful money of the United States and in same day funds, not later than 1:00 p.m. (New York time) on the Settlement Date, such Lender’s Commitment Percentage of a Revolving Advance (which Revolving Advance shall be a Domestic Rate Loan and shall be deemed to be requested by Borrower) in the principal amount of such portion of the Swingline Loans which is required to be paid to Swingline Lender under this Section 2.1(c) (regardless of whether the conditions precedent thereto set forth in Article VIII are then satisfied and whether or not Borrower has provided a Notice of Borrowing under Section 2.2 and whether or not any Default or Event of Default exists or all or any of the Advances have been accelerated, but subject to the other provisions of this Section 2.1(c)). The proceeds of any such Revolving Advance shall be immediately paid over to Agent for the benefit of Swingline Lender for application to the Swingline Loan.
(iii) In the event that an Event of Default shall occur and either (i) such Event of Default is of the type described in Section 10.7 or 10.8 or (ii) the sum of the total no further Revolving Credit Exposures exceeding the total 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in Advances are being made under this Agreement, so long as any such Event of Default is continuing, then, each of the Lenders (other than Swingline Lender) shall be deemed to have irrevocably, unconditionally and immediately purchased a participation from Swingline Lender of such Lender’s Commitment Percentage of the Swingline Loan outstanding as of the date of the occurrence of such Event of Default. Each Lender shall not be obligated effect such purchase by making available an amount equal to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable its Commitment Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, Loan on the Borrower shall notify the Administrative Agent date of such request by telephone purchase in Dollars in immediately available funds to Agent for the benefit of Swingline Lender. In the event any Lender fails to make available to Swingline Lender when due the amount of such Lender’s participation in the Swingline Loan (confirmed by telecopyas calculated above), not later than 12:00 noon, New York City time, Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest at the day of a proposed Swingline LoanFederal Funds Rate. Each such notice purchase by a Lender shall be irrevocable made without recourse to Swingline Lender, without representation or warranty of any kind, and shall specify the requested date (which shall be a Business Day) effected and amount of the requested evidenced pursuant to documents reasonably acceptable to Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerLender. The Swingline Lender Loans shall make each Swingline Loan available to be evidenced by one or more promissory notes substantially in the Borrower by means form of a credit to the general deposit account Exhibit D. The obligations of the Borrower with the Swingline Lender (orLenders under this Section 2.1(c) shall be absolute, in the case of a Swingline Loan irrevocable and unconditional, shall be made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in under all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional circumstances and shall not be affected by any circumstance whatsoeveraffected, including the occurrence and continuance of a Default reduced or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower impaired for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofreason whatsoever.
Appears in 2 contracts
Samples: Loan and Security Agreement (Veeco Instruments Inc), Loan and Security Agreement (Marketwise, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower Borrower, from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 5,000,000 or (ii) the sum of the total Aggregate Revolving Credit Exposures exceeding the total aggregate Revolving Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Each Swingline Loan shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000; provided that a Swingline Loan may be in an aggregate amount that is equal to the entire unused balance of the total Revolving Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e). Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopyfax), not later than 12:00 noon2:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit Funding Account(s) or such other account of the Borrower with the Swingline Lender as may be specified in a Borrowing Request (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the relevant Issuing Bank, and in the case of repayment of another Loan or fees or expenses as provided by Section 2.18(c), by remittance to the Administrative Agent to be distributed to the Lenders) by 3:00 4:00 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 10:00 11:00 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 the 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 such Lender’s Applicable Percentage of such Swingline Loan or 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 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 reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Samples: Credit Agreement (Planet Fitness, Inc.), Credit Agreement (Planet Fitness, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, during the period from the Effective Date to but excluding the Termination Date, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any one time outstanding that will up to, but not result in (i) exceeding, the amount of the Swingline Commitment. If at any time the aggregate principal amount of outstanding the Swingline Loans exceeding $10,000,000 or (ii) outstanding at such time exceeds the sum Swingline Commitment in effect at such time, the Borrower shall immediately pay the Agent for the account of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loanthe amount of such excess. Within the foregoing limits and subject Subject to the terms and conditions set forth hereinof this Agreement, the Borrower may borrow, prepay repay and reborrow Swingline LoansLoans hereunder. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement2.2., the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a any other Lender is a Defaulting Lender, unless the Swingline Lender unless is satisfied that the participation therein will otherwise be fully allocated to the Non-Defaulting Lenders consistent with Section 3.11.(c) and the Defaulting Lender shall not participate therein, except to the extent the Swingline Lender has entered into arrangements with the Borrower or such Defaulting Lender that are satisfactory to it and the Borrower Swingline Lender in its good faith determination to eliminate the Swingline Lender’s risk Fronting Exposure with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing any such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 delivery of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofcash collateral.
Appears in 2 contracts
Samples: Credit Agreement (Kite Realty Group Trust), Credit Agreement (Kite Realty Group Trust)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make Swingline Loans in Dollars to the Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or would exceed the Swingline Loan Sublimit, (ii) the sum of aggregate Revolving Credit Exposures would exceed the total Revolving Commitments or (iii) such Swingline Lender’s Credit Exposures exceeding the total CommitmentsExposure would exceed its Revolving Commitment; provided further 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to Immediately upon the contrary contained in this Section 2.04 or elsewhere in this Agreementmaking of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Loan in an amount equal to the product of such Defaulting Revolving Lender’s or Defaulting Lenders’ Applicable Percentage times the amount of the outstanding such Swingline LoansLoan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by telecopy), not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline Loan. Each Loan Notice, and, in each case, such notice shall be irrevocable irrevocable. Each such Swingline Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested date (borrowing date, which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, p.m. on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments and the conditions set forth in Section 4.01 or Section 4.02, as applicable. The Swingline Lender shall furnish the Borrower with a copy of the applicable Borrowing Request promptly after delivering such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, . Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and such Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the 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(c) by the time specified in Section 2.04(c)(i), 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 applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or reduction (C) any other occurrence, event or termination condition, whether or not similar to any of the Commitmentsforegoing; provided, and however, that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 2.164.01 or Section 4.02, as applicable. Each No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender shall comply with has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Revolving Lender shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent account of the Swingline Lender.
(f) The Borrower shall make all payments of principal and not interest in respect of its Swingline Loans directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Viatris Inc), Revolving Credit Agreement (Viatris Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make Swingline Loans in Dollars to the U.S. Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or would exceed the Swingline Loan Sublimit, (ii) the sum of aggregate Revolving Credit Exposures would exceed the total Revolving Commitments or (iii) unless otherwise agreed by such Swingline Lender, the aggregate amount of Swingline Loans, Revolving Loans and Letters of Credit Exposures exceeding the total Commitmentsissued by such Swingline Lender would exceed such Swingline Lender’s Revolving Commitments hereunder; provided provided, further, 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 U.S. Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to Immediately upon the contrary contained in this Section 2.04 or elsewhere in this Agreementmaking of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Loan in an amount equal to the product of such Defaulting Revolving Lender’s or Defaulting Lenders’ Applicable Percentage times the amount of the outstanding such Swingline LoansLoan.
(b) To request a Swingline Loan, the U.S. Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by telephone (confirmed and shall be irrevocable. Each such notice must be received by telecopy), the Swingline Lender and the Administrative Agent not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested date (borrowing date, which shall be a Business Day) . Each such telephonic notice must be confirmed promptly by delivery to the Swingline Lender and amount the Administrative Agent of a written Swingline Loan Notice, appropriately completed and signed by a Responsible Officer of the requested Swingline LoanU.S. Borrower. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 3:00 p.m., New York City time, on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Section 4.04 is not then satisfied, then the Swingline Lender shall make each such Swingline Loan available to the U.S. Borrower by means of a credit to the general deposit account of the U.S. Borrower with the Swingline Lender (or, in or the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), Administrative Agent by remittance to the relevant Issuing Bank) by 3:00 4:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by request, on behalf of the U.S. Borrower (and the U.S. Borrower hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of the applicable Class of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.04. The Swingline Lender shall furnish the U.S. Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice given to the Administrative Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage (of the amount of the applicable Class of Swingline Loans) of the aggregate amount specified in such Borrowing Request available to the Administrative Agent in immediately available funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 10:00 a.m.1:00 p.m., New York City time, on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the U.S. Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any Business Day require reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with Section 2.04(c)(i), the Lenders request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to acquire participations on such Business Day in all or be a portion request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of Loan and such notice, Revolving Lender’s payment to the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline LenderLender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the 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(c) by the time specified in Section 2.04(c)(i), 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 applicable Federal Funds Effective Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the U.S. Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default or reduction (C) any other occurrence, event or termination condition, whether or not similar to any of the Commitmentsforegoing; provided, and however, that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 2.164.04. Each No such funding of risk participations shall relieve or otherwise impair the obligation of the U.S. Borrower to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender shall comply with has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Revolving Lender shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Federal Funds Effective Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the U.S. Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent and not to account of the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Samples: Credit Agreement (CONDUENT Inc), Credit Agreement (CONDUENT Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, Swingline Lender, in reliance on the Swingline Lender agrees to agreements of Lenders set forth in this Section 2.2, may in its sole discretion make Swingline Loans to the Borrower from time to time on any Business Day during the Revolving Credit Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the Revolving Credit Exposure of Swingline Lender exceeding its Commitment, (ii) the total Revolving Credit Exposures exceeding the total Commitments or (iii) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total CommitmentsSwingline Sublimit; provided provided, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan and Swingline Lender shall not be under any obligation to make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Swingline Loan may have, Fronting Exposure; and provided further, that in making any such Swingline Loan, the Swingline Lender shall not waive any of the terms or conditions set forth herein without first obtaining the prior written consent of the Lender or Lenders acquiring a participation of such Swingline Loan pursuant to Section 2.2(b) below. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything Promptly after receipt of a request for a Borrowing, Agent shall elect, in its discretion, (i) to have the contrary contained in this terms of Section 2.04 2.3(a) apply to such requested Borrowing, or elsewhere in this Agreement, the (ii) to request Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower terms of any default Section 2.3(b) in the payment thereofamount of the requested Borrowing; provided, however, that if Swing Lender declines in its sole discretion to make a Swing Loan pursuant to Section 2.3(b), Agent shall elect to have the terms of Section 2.3(a) apply to such requested Borrowing.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hercules Capital, Inc.), Loan and Security Agreement (Hercules Capital, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the Swingline Lender agrees may, in its sole discretion, make loans for the Swingline Lender’s own account (each a “Swingline Loan”) to make Swingline Loans the extent the same would otherwise have been available to the Borrower from time to time during under the Availability Period, Total Revolving Credit Commitment in an aggregate principal amount at any one time outstanding up to, but not exceeding, $15,000,000; provided, however, that will not result in (i) at no time shall the Swingline Lender make any Swingline Loan to the extent that, after giving effect to such Swingline Loan, the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total each Lender’s Revolving Credit Exposures exceeding Exposure at such time would exceed the total CommitmentsAvailability or the amount of any Lender’s Revolving Credit Exposure at such time would exceed such Lender’s Revolving Credit Commitment; and provided further, however, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within not, without the foregoing limits and subject to consent of the terms and conditions set forth hereinRequired Lenders, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless if any Event of Default exists of which the Swingline Lender has entered into arrangements satisfactory actual knowledge. Each Swingline Loan shall be an Alternate Base Rate Borrowing and shall in any event mature no later than the Revolving Credit Termination Date. Subject to it the conditions herein and within the limits set forth in the first sentence of this paragraph, any Swingline Loan prepaid prior to the Revolving Credit Termination Date may be reborrowed as an additional Swingline Loan by the Borrower to eliminate the Swingline Lender’s risk with respect pursuant to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage terms of the outstanding Swingline Loansthis Agreement.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time1:00 p.m., on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The , and subject to the terms of this Agreement, the Swingline Lender shall may make each a Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, 5:00 p.m. on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later demand at any time (but in no event shall such demand be made less frequently than 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to once per each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each calendar month) that each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, in the manner provided below, such Lender’s Applicable Revolving Credit Commitment Percentage of all or a portion of the outstanding Swingline Loans, which demand shall be made through the Agent, shall be in writing and shall specify the outstanding principal amount of Swingline Loans demanded to be paid. The Agent shall forward notice of each such demand to each Lender on the day such demand is received by the Agent (except that any such notice or demand received by the Agent after 1:00 p.m. on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Agent until the next succeeding Business Day), together with a statement prepared by the Agent specifying the amount of each Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of the Swingline Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Sections 4.1 or 4.2 shall have been satisfied (which conditions precedent, for the purposes of payment of Swingline Loans only, the Lenders hereby irrevocably waive), each Lender shall, before 10:00 a.m. on the Business Day next succeeding the date of such Lender’s receipt of such notice, make available to the Agent, in immediately available funds, for the account of the Swingline Lender, the amount specified in such statement, provided that such amount shall not cause such Lender’s Revolving Credit Exposure to exceed such Lender’s Revolving Credit Commitment. Upon such payment by a Lender, such Lender shall, except as provided in Section 2.11(d) below, be deemed to have made a Revolving Loan to the Borrower in the amount of such payment. The Borrower agrees that all such Revolving Loans so deemed made shall be deemed to have been requested by it and directs that all proceeds thereof shall be used to repay the Swingline Loans to the Swingline Lender, and the Agent shall use such funds received from the Lenders to repay the Swingline Loans to the Swingline Lender. To the extent that any Lender fails to make such payment available to the Agent for the account of the Swingline Lender, the Borrower shall repay such Swingline Loan on demand.
(d) Upon the occurrence of any Event of Default described in Sections 8.1(o) through 8.1(r), each Lender shall acquire, without recourse or warranty, an undivided participation in each Swingline Loan otherwise required to be repaid by such Lender pursuant to Section 2.11(c) above, which participation shall be in a principal amount equal to such Lender’s Revolving Credit Commitment Percentage of such Swingline Loan or Loans. Each 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 Loan, by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay paying to the Swingline Lender on the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant date on which such Lender would otherwise have been required to this paragraph, and thereafter payments make a payment 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and Section 2.11(c) above, in immediately available funds, an amount equal to the Swingline such Lender, as their interests may appear; provided that any ’s Revolving Credit Commitment Percentage of such payment so remitted shall be repaid Swing Loan. If all or part of such amount is not in fact made available by such Lender to the Swingline Lender or on such date, the Swingline Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at the Administrative Agent, as applicable, if and to Federal Funds Rate for the extent first Business Day after such payment was due and thereafter at the rate of interest then applicable to Alternate Base Rate Borrowings.
(e) From and after the date on which any Lender (i) is required deemed to be refunded have made a Revolving Loan pursuant to the Borrower for Section 2.11(c) above with respect to any reason. The purchase of participations Swingline Loan or (ii) purchases an undivided participation interest in a Swingline Loan pursuant to this paragraph Section 2.11(d) above, the Swingline Lender shall not relieve promptly distribute to such Lender such Lender’s Revolving Credit Commitment Percentage of all payments of principal of and interest received by the Borrower Swingline Lender on account of any default in the payment thereofsuch Swingline Loan other than those received from a Lender pursuant to Sections 2.11(c) or (d) above.
Appears in 2 contracts
Samples: Credit Agreement (Animal Health International, Inc.), Credit Agreement (Animal Health International, Inc.)
Swingline Loans. (a) Subject to For ease of administration, Base Margin Loans may be made by the terms and conditions SwingLine Lender (in the aggregate, the "SWINGLINE LOANS") in accordance with the procedures 45 set forth hereinin this Agreement for the making of loans and advances under the Revolving Credit. The aggregate unpaid principal balance of the SwingLine Loans shall not, the Swingline Lender agrees as to make Swingline Loans to the Borrower from time to time during the Availability Periodall Borrowers, in an aggregate principal amount at any one time outstanding that will not result be in excess of the lesser of (i) as to all Borrowers, the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 SwingLine Loan Ceiling, or (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline as to any Division, Filene's Availability, or VC Availability, as applicable. The SwingLine Lender shall not make a SwingLine Loan if the SwingLine Lender has received notice from the Administrative Agent that the Administrative Agent has suspended, or the Administrative Agent has received written notice from the SuperMajority Lenders instructing the Administrative Agent to suspend, the Revolving Credit in accordance with the terms hereof. Absent such notification, the SwingLine Lender (x) shall not otherwise be required to determine whether the conditions precedent to such SwingLine Loan have been satisfied or whether the requested borrowing would cause Availability, Filene's Availability or VC Availability, as applicable, to be exceeded, and (y) shall be entitled in all cases to have each Revolving Credit Lender make a Swingline Loan to refinance an outstanding Swingline Loan. Within Revolving Credit Loans in settlement of such SwingLine Loans in accordance with the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this provisions of Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans13.2 hereof.
(b) To request The aggregate unpaid principal balance of SwingLine Loans shall bear interest at the rate applicable to Base Margin Loans (or a Swingline Loan, money market based rate quoted by the Borrower shall notify Agent and accepted by the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice Lead Borrower) and shall be irrevocable and shall specify repayable as a loan under the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanRevolving Credit.
(c) The Swingline Lender may Borrowers' obligation to repay SwingLine Loans shall be evidenced by written notice given a Note in the form of EXHIBIT 2.8(C), annexed hereto, executed by the Borrowers, and payable to the Administrative Agent not later than 10:00 a.m.SwingLine Lender. Neither the original nor a copy of that Note shall be required, New York City timehowever, on to establish or prove any Business Day require Liability. Upon receipt of an affidavit of an officer of, and a customary indemnity from, a SwingLine Lender as to the Lenders to acquire participations on such Business Day in all loss, theft, destruction or a portion mutilation of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeSwingLine Note, the Administrative Agent Borrowers will give notice issue in lieu thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, replacement SwingLine Note in the same manner principal amount thereof and of like tenor.
(d) For all purposes of this Loan Agreement, the SwingLine Loans and the Borrowers' obligations to the SwingLine Lender constitute Revolving Credit Loans and are secured as "Liabilities".
(e) SwingLine Loans shall be subject to periodic settlement with the Revolving Credit Lenders 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofAgreement.
Appears in 2 contracts
Samples: Loan and Security Agreement (DSW Inc.), Loan and Security Agreement (Retail Ventures Inc)
Swingline Loans. (ai) Subject to the terms and conditions set forth hereinin this Agreement, the Swingline Lender agrees to may, in its discretion and in reliance upon the agreements of the other Lenders set forth in this Section 2.01(b) make Swingline Loans to the Borrower from time to time during from the Availability PeriodClosing Date through, in an aggregate principal amount at any time outstanding but not including, the Facility Termination Date; provided, that will not result in (i) the aggregate principal amount of all outstanding Swingline Loans exceeding $10,000,000 or (after giving effect to any amount requested), shall not exceed the Swingline Sublimit and (ii) the sum aggregate principal amount of all Revolving Loans by such Lender to Borrower plus such Lender’s Pro Rata Share of the total Revolving Credit Exposures exceeding the total Commitments; provided that the aggregate principal amount of all Swingline Lender Loans to Borrower shall not be required exceed such Lender’s Commitment; provided, further, that, subject to make a Section 2.1(b)(ii), Borrower shall not use the proceeds of any Swingline Loan to refinance an any outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent in accordance with Section 2.10 hereof. Borrower shall be entitled to borrow, repay and reborrow Swingline Loans in accordance with the terms and subject to the conditions of such request by telephone this Agreement.
(confirmed by telecopyii) The Swingline Lender may, at any time and from time to time, give written notice to the Agent (a “Swingline Borrowing Notice”), not later than 12:00 noonon behalf of Borrower (and Borrower hereby irrevocably authorizes and directs the Swingline Lender to act on its behalf), New York City time, on requesting that the day of a proposed Lenders (including the Swingline Loan. Each such notice shall be irrevocable and shall specify Lender) make Revolving Loans to Borrower in an amount equal to the requested date (which shall be a Business Day) and unpaid principal amount of the requested any Swingline Loan. The Administrative Agent will promptly advise Swingline Borrowing Notice shall include the Swingline Lender of any such notice received from the Borrowerinformation with respect to each Revolving Loan set forth in Section 2.10. The Swingline Lender shall provide a copy of any such notice to Borrower. Each Lender shall make each a Revolving Loan in same day funds in an amount equal to its respective Pro Rata Share of Revolving Loans as required to repay the Swingline Loan available outstanding to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender promptly upon receipt of a Swingline Borrowing Notice but in no event later than 1:00 p.m. on the next succeeding Business Day after such Swingline Borrowing Notice is received. On the date of such Revolving Loan, the Swingline Loan (orincluding the Swingline Lender’s Pro Rata Share thereof, in its capacity as a Lender) shall be deemed to be repaid with the case proceeds thereof and shall thereafter be reflected as a Revolving Loan on the books and records of the Agent. No Lender’s obligation to fund its respective Pro Rata Share of a Swingline Loan made shall be affected by any other Lender’s failure to finance the reimbursement fund its Pro Rata Share of an LC Disbursement any Swingline Loan, nor shall any Lender’s Pro Rata Share be increased as provided in Section 2.05(e), by remittance a result of any such failure of any other Lender to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date fund its Pro Rata Share of such any Swingline Loan.
(ciii) The If not repaid earlier, Borrower shall pay to the Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the 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 each Swingline Loans in which Lenders will participate. Promptly upon Loan within seven days of receipt of such noticeSwingline Loan. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of Borrower from the Swingline Lender in bankruptcy or otherwise, the Administrative Agent will give notice thereof loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of Borrower pertain to each Lender, specifying in such notice such Lender’s Applicable Percentage of such a Swingline Loan or Loansextended after the occurrence and during the continuance of a Default of which the Agent has received notice in the manner required pursuant to Section 10.9 and which such Event of Default has not been waived pursuant to the terms hereof). Each If any payment received by the Swingline Lender hereby absolutely and unconditionally agreesunder any of the circumstances described in Section 11.3 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), upon receipt of notice as provided above, to each Lender shall pay to the Administrative Swingline Lender its Pro Rata Share thereof on demand of the Agent, for plus interest thereon from the account date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Effective Rate. The Agent will make such demand upon the request of the Swingline Lender, such Lender’s Applicable Percentage . The obligations of such Swingline Loan or Loans. the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(iv) Each Lender acknowledges and agrees that its obligation to acquire participations in repay Swingline Loans pursuant to in accordance with the terms of this paragraph Section is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination including, without limitation, non-satisfaction of the Commitmentsconditions set forth in Article IV. Further, each Lender agrees and acknowledges that if prior to the repayment of any outstanding Swingline Loans pursuant to this Section, one of the events described in Section 7.6 or 7.7 shall have occurred, or if a Revolving Loan may not be (as determined in the reasonable discretion of the Agent), or is not, made in accordance with the foregoing provisions, each Lender will, on the date the applicable Revolving Loan would have been made, purchase an undivided participating interest in such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject Swingline Loan in an amount equal to Section 2.16its Pro Rata Share of the aggregate amount of such Swingline Loan. Each Lender shall comply with its obligation under this paragraph by wire will immediately 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amount, such certificate to be conclusive absent manifest error. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment so remitted on account thereof, the Swingline Lender will distribute to such Lender (including pursuant to a participation made by the Swingline Lender) its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded).
(v) The Swingline Lender shall be repaid responsible for invoicing the Borrower for interest on the Swingline Loans. Until each Lender funds its Revolving Loans or participations pursuant to this Section 2.1(b) to refinance such Lender’s Pro Rata Share of any Swingline Loan, interest in respect of such Pro Rata Share shall be solely for the account of the Swingline Lender.
(vi) The Borrower shall make all payments of principal and interest in respect of the Swingline Loans directly 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofLender.
Appears in 2 contracts
Samples: Credit Agreement (Pepco Holdings Inc), Credit Agreement (Pepco Holdings Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 the Swingline Commitment or (ii) the sum of Revolving Facility Credit Exposure exceeding the total Revolving Credit Exposures exceeding the total Facility Commitments; provided provided, that the Swingline Lender shall not be required to make a Swingline Loan (x) to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 Borrowing or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan (y) at a time when a Revolving Facility Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the such Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing collateralizing, or obtaining a backstop letter of credit from an issuer reasonably satisfactory to the Issuing Bank to support, such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage ratable share of the outstanding Swingline Loans. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline LoanBorrowing, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone (confirmed by a Swingline Borrowing Request by telecopy), not later than 12:00 noon1:00 p.m., New York City timeLocal Time, on the day of a proposed Swingline LoanBorrowing. Each such notice and Swingline Borrowing Request shall be irrevocable and shall specify (i) the requested date (which shall be a Business Day) and (ii) the amount of the requested Swingline LoanBorrowing. The Swingline Lender shall consult with the Administrative Agent will promptly advise as to whether the making of the Swingline Loan is in accordance with the terms of this Agreement prior to the Swingline Lender of any funding such notice received from the BorrowerSwingline Loan. The Swingline Lender shall make each Swingline Loan in accordance with Section 2.02(a) on the proposed date thereof by wire transfer of immediately available funds by 4:00 p.m., Local Time, to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan Borrowing made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City timeLocal Time, on any Business Day require the Revolving Facility Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans outstandingmade by it. Such notice shall specify the aggregate amount of such Swingline Loans in which the Revolving Facility Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each such Lender, specifying in such notice such Lender’s Applicable Revolving Facility Lender’s Revolving Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, Agent for the account of the Swingline Lender, such Revolving Facility Lender’s Applicable Revolving Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender acknowledges and agrees that its respective 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Revolving Facility 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 Facility Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Facility Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph (c), 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Facility Lenders that shall have made their payments pursuant to this paragraph 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 to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Samples: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)
Swingline Loans. (a) Subject to For ease of administration of Tranche A Loans, Tranche A Loans which are Base Margin Loans may be made by the terms and conditions SwingLine Lender (in the aggregate, the "SWINGLINE LOANS") in accordance with the procedures set forth herein, in this Agreement for the Swingline Lender agrees making of Tranche A Loans. The unpaid principal balance of the SwingLine Loans shall not at any one time be in excess of the SwingLine Loan Ceiling (which SwingLine Loan Ceiling is subject to make Swingline Loans to the Borrower amendment from time to time during time, by reasonable advance notice by the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total 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 Administrative Agent to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansLead Borrower).
(b) To request a Swingline Loan, The aggregate unpaid principal balance of SwingLine Loans shall bear interest at the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice rate applicable to Base Margin Loans and shall be irrevocable and shall specify repayable as a Tranche A Loan under the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanRevolving Credit.
(c) The Swingline Lender may Borrowers' obligation to repay SwingLine Loans shall be evidenced by written notice given a Note in the form of EXHIBIT 2.7 ("SWINGLINE NOTE"), executed by the Lead Borrower on behalf of itself and the other Borrowers, and payable to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require SwingLine Lender. Neither the Lenders to acquire participations on such Business Day in all or original nor a portion copy of the Swingline Loans outstandingSwingLine Note shall be required to establish or prove any Liability. Such notice Upon the Lead Borrower being provided with an affidavit (which shall specify include an indemnity reasonably satisfactory to the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeLead Borrower) from the SwingLine Lender to the effect that the SwingLine Note has been lost, mutilated, or destroyed, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage Lead Borrower shall on behalf of such Swingline Loan or Loans. Each Lender hereby absolutely itself and unconditionally agrees, upon receipt the other Borrowers execute and deliver a replacement of notice as provided above, to pay any SwingLine Note to the Administrative AgentSwingLine Lender.
(d) For all purposes of this Loan Agreement, for the account of SwingLine Loans and the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Borrowers' obligations to the SwingLine Lender acknowledges constitute Tranche A Loans and agrees that its obligation to acquire participations in Swingline are secured as "Liabilities".
(e) SwingLine Loans pursuant to this paragraph is absolute and unconditional and shall not may be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender shall comply periodic settlement with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner Tranche A Lenders 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 3.2 of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofAgency Agreement.
Appears in 2 contracts
Samples: Loan and Security Agreement (Mazel Stores Inc), Loan and Security Agreement (Mazel Stores Inc)
Swingline Loans. (a) Subject In the event that, when a Base Margin Rate Revolving Credit Loan is requested, the aggregate unpaid balance of the SwingLine Loan is less than the SwingLine Loan Ceiling, then the SwingLine Lender may advise the Administrative Agent that the SwingLine Lender has determined to include up to the terms and conditions set forth hereinamount of the requested Revolving Credit Loan as part of the SwingLine Loan. In such event, the Swingline SwingLine Lender agrees to make Swingline Loans shall Transfer the amount of the requested Revolving Credit Loan to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansAdministrative Agent.
(b) To request The SwingLine Loan shall be converted to a Swingline LoanRevolving Credit Loan in which all Revolving Credit Lenders participate as follows:
(i) At any time and from time to time, but no less frequently than once during each five (5) Business Day period, the Borrower shall notify SwingLine Lender may advise the Administrative Agent that all, or any part of the SwingLine Loan is to be converted to a Revolving Credit Loan in which all Revolving Credit Lenders participate.
(ii) At the times set forth in Section 13.4, the then entire unpaid principal balance of the SwingLine Loan shall be converted to a Revolving Credit Loan in which all Revolving Credit Lenders participate.
(iii) At the initiation of a Liquidation, the then entire unpaid principal balance of the SwingLine Loan shall be converted to a Revolving Credit Loan in which all Revolving Credit Lenders participate. In either such event, the Administrative Agent shall advise each Revolving Credit Lender of such request by telephone (confirmed by telecopy)conversion as if, not later than 12:00 noon, New York City time, on and with the day same effect as if such conversion were the making of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Revolving Credit Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan13.1.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each SwingLine Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agreesseparate capacities, 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 Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not may also be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 a Revolving Credit Lender.
(d) The SwingLine Lender, in its capacity as SwingLine Lender, is not to the Swingline a "Revolving Credit Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf " for any of the Borrowerfollowing purposes:
(i) Except as otherwise specifically provided 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 to the Administrative Agent; relevant Section, any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments distribution pursuant to this paragraph and Section 14.6.
(ii) Determination of whether the requisite Loan Commitments have Consented to the Swingline Lender, as their interests may appear; provided that any action requiring 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofConsent.
Appears in 2 contracts
Samples: Loan and Security Agreement (DSW Inc.), Loan and Security Agreement (DSW 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 set forth hereinapplicable to other ABR Loans funded by the Revolving Lenders, except that all payments thereon shall be payable to the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time solely for its own account. In addition, during the Availability any Dominion Trigger Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that Borrowers hereby authorize the Swingline Lender shall not be required to make a to, and the Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and Lender shall, subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make herein (but without any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopyfurther written notice required), not later than 12:00 noon1:00 p.m., New York City Atlanta time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a each Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall , make each Swingline Loan available to the Borrower Borrowers by means of a credit to the general deposit account of Funding Account(s), the Borrower with the Swingline Lender (or, in the case proceeds of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 Operating Account that day (c) The Swingline Lender may by written as determined based on notice given to from the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the 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 outstanding at any time shall not exceed $30,000,000. The Swingline Lender shall not make any Swingline Loan if the requested Swingline Loan exceeds Availability (before giving effect to such Swingline Loan) or if the Required Lenders have notified the Swingline Lender in writing that the conditions to a Borrowing in Section 4.02 are not satisfied. All Swingline Loans shall be ABR Borrowings.
(b) 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 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 Commitments. The Swingline Lender may, at any time, require the Revolving Lenders to fund their participations. From and after the date, if any, on which Lenders will participate. Promptly upon receipt of such noticeany Revolving Lender is required to fund its participation in any Swingline Loan purchased hereunder, the Administrative Agent will give notice thereof shall promptly distribute to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the Borrower) 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 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 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 Lenders on at least a weekly basis or on any date that any the Administrative Agent elects, by notifying the Revolving Lenders of such payment so remitted shall be repaid to requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon Atlanta time on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender (other than the Swingline Lender or 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 applicablethe Administrative Agent may designate, if not later than 2:00 p.m., Atlanta 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 extent 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 payment Swingline Loan, shall constitute Revolving Loans of such Revolving Lenders, respectively. If any such amount is required to be refunded not transferred to the Borrower for Administrative Agent by any reason. The purchase of participations Revolving Lender on such Settlement Date, the Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon as specified in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofSection 2.07.
Appears in 2 contracts
Samples: Credit Agreement (Interline Brands, Inc./De), Credit Agreement (Interline Brands, Inc./De)
Swingline Loans. (a) Subject In the event that, when a Revolving Credit Loan is requested, the aggregate unpaid balance of the SwingLine Loan is less than the SwingLine Loan Ceiling, then the SwingLine Lender may advise the Agent that the SwingLine Lender has determined to include up to the terms and conditions set forth hereinamount of the requested Revolving Credit Loan as part of the SwingLine Loan. In such event, the Swingline SwingLine Lender agrees to make Swingline Loans shall Transfer the amount of the requested Revolving Credit Loan to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansAgent.
(b) To request The SwingLine Loan shall be converted to a Swingline LoanRevolving Credit Loan in which all Revolving Credit Lenders participate as follows:
(i) At any time and from time to time, the Borrower SwingLine Lender may advise the Agent that all, or any part of the SwingLine Loan is to be converted to a Revolving Credit Loan in which all Revolving Credit Lenders participate.
(ii) At the initiation of a Liquidation, the then entire unpaid principal balance of the SwingLine Loan shall notify be converted to a Revolving Credit Loan in which all Revolving Credit Lenders participate. In either such event, the Administrative Agent shall advise each Revolving Credit Lender of such request by telephone (confirmed by telecopy)conversion as if, not later than 12:00 noon, New York City time, on and with the day same effect as if such conversion were the making of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Revolving Credit Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan12-1.
(c) The Swingline Lender SwingLine Lender, in separate capacities, may by written notice given to also be the Administrative Agent and a Revolving Credit Lender.
(d) The SwingLine Lender, in its capacity as SwingLine Lender, is not later than 10:00 a.m., New York City time, on a “Revolving Credit Lender” for any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify following purposes:
(i) Except as otherwise specifically provided in the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticerelevant Section, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans any distribution pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including Section 13-6.
(ii) Determination of whether the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each requisite Loan Commitments have Consented to action requiring such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofConsent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hastings Entertainment Inc), Loan and Security Agreement (Hastings Entertainment Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower Borrowers, from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount sum of outstanding the total Swingline Loans Exposures exceeding $10,000,000 the Swingline Commitment or (ii) the sum of the total Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding the total Commitments; provided that (A) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and (B) the Swingline Lender shall not make a Swingline Loan if it shall have been notified by the Administrative Agent at the written request of the Required Lenders that a Default or an Event of Default has occurred and is continuing and that, as a result, no further Swingline Loans shall be made by it (a “Swingline Suspension Notice”). Each Swingline Loan shall be made as part of a Borrowing consisting of Swingline Loans made by the Swingline Lender. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Each Swingline Loan at shall be in an integral multiple of $1,000,000; provided that a time when a Lender Swingline Loan may be in an aggregate amount that is a Defaulting Lender unless required to finance the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including reimbursement of an LC Disbursement as contemplated by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansSection 2.06(e).
(b) To request Swingline Borrowings, a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), ) no later than the day of a proposed Swingline Borrowing by not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loansuch day. Each such notice shall be irrevocable and shall specify the requested borrowing date (which shall be a Business Day) ), and the aggregate amount of the requested Swingline LoanBorrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the a Borrower. The Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a credit transfer of funds to the general deposit account of the applicable Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) Administrative Agent by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by By written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day Day, the Swingline Lender may require the Lenders to acquire participations on such Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice the percentage of the applicable Swingline Loans allocated to such Lender’s Lender based on its respective Applicable Percentage of such Swingline Loan or LoansPercentage. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s its Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that that, in the absence of a Swingline Suspension Notice received by the Swingline Lender not less than two Business Days prior to the making of the applicable Swingline Loan, its obligation to acquire participations in each Swingline Loans Loan 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 2.09 with respect to Loans made by such Lender (and Section 2.06 2.09 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the applicable 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 applicable Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the any Borrower of any default in the payment thereof.
Appears in 2 contracts
Samples: Credit Agreement (Newmont Mining Corp /De/), Credit Agreement (Newmont Mining Corp /De/)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to may in its discretion, and in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.05, make available Swingline Loans to the Borrower Borrowers from time to time during the Availability Period, Period in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 30,000,000 or (ii) the sum total Revolving Exposures exceeding the lesser of the total Revolving Credit Exposures exceeding Commitments and the total CommitmentsBorrowing Base; 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 Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower Agent shall notify the Administrative Agent of such request by telephone (confirmed by telecopyfacsimile), not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerBorrower Agent. The Swingline Lender shall make each Swingline Loan available to the Borrower Borrowers by means of a credit to the general deposit account Funding Account or otherwise in accordance with the instructions of the Borrower with the Swingline Lender Agent (orincluding, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the relevant applicable Issuing Bank, and in the case of repayment of another Loan or fees or expenses as provided by Section 2.18(c), by remittance to the Agent to be distributed to the Lenders) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(b) To facilitate administration of the Revolving Loans, the Revolving Lenders and the Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by any Borrower) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among them as to the Revolving Loans and the Swingline Loans and the Protective Advances shall take place on a periodic basis in accordance with this clause (b). The Agent shall request settlement (a “Settlement”) with the Revolving Lenders on at least a weekly basis, or on a more frequent basis if so determined by the Agent, (A) on behalf of the Swingline Lender, with respect to each outstanding Swingline Loan and (B) with respect to collections received, in each case, by notifying the Revolving Lenders of such requested Settlement by telecopy, telephone, or other similar form of transmission, of such requested Settlement, no later than 2:30 p.m. New York City Time, on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender (other than the Swingline Lender, in the case of Swingline Loans) shall make the amount of such Revolving Lender’s Applicable Percentage of the outstanding principal amount of the Swingline Loans with respect to which Settlement is requested available to the Agent, to such account of the Agent as the Agent may designate, not later than 3:30 p.m., New York City time, on the Settlement Date applicable thereto, which may occur before or after the occurrence or during the continuation of a Default or an Event of Default and whether or not the applicable conditions precedent set forth in Article IV have then been satisfied without regard to any minimum amount specified therein. Such amounts made available to the Agent shall be applied against the amounts of the applicable Swingline Loan and, together with the portion of such Swingline Loan representing the Swingline Lender’s pro rata share thereof, shall constitute Revolving Loans of the Revolving Lenders. If any such amount is not made available to the Agent by any Revolving Lender on the Settlement Date applicable thereto, the Agent shall, on behalf of the Swingline Lender with respect to each outstanding Swingline Loan, be entitled to recover such amount on demand from such Revolving Lender together with interest thereon at the Federal Funds Effective Rate for the first three days from and after the Settlement Date and thereafter at the interest rate then applicable to Revolving Loans. Between Settlement Dates the Agent may pay over to the Swingline Lender any payments received by the Agent, which in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Loans, for application to the Swingline Lender’s Revolving Loans or Swingline Loans. If, as of any Settlement Date, collections received since the then immediately preceding Settlement Date have been applied to the Swingline Lender’s Revolving Loans, the Swingline Lender shall pay to the Agent for the accounts of the Revolving Lenders, to be applied to the outstanding Revolving Loans of such Revolving Lenders, an amount such that each Revolving Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Applicable Percentage of the Revolving Loans. During the period between Settlement Dates, the Swingline Lender with respect to Swingline Loans, the Agent with respect to Protective Advances and each Revolving Lender with respect to its Revolving Loans shall be entitled to interest thereon at the applicable rate or rates payable under this Agreement.
(c) The In addition, the Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.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 such Revolving Lender’s Applicable Percentage of such Swingline Loan or 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 Revolving Lender’s Applicable Percentage of such Swingline Loan or 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. 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), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the 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 Borrower Borrowers (or other party on behalf of the 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 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 any Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Borrowers of any default in the payment thereof.
Appears in 2 contracts
Samples: Credit Agreement (Northern Tier Energy LP), Credit Agreement (Northern Tier Energy, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability Period, each Swingline Lender severally agrees to make Swingline Loans, denominated in dollars, to the Borrower in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of the outstanding Swingline Loans exceeding $10,000,000 or aggregate Swingline Commitment, (ii) the sum aggregate principal amount of the total outstanding Swingline Loans made by such Swingline Lender exceeding such Swingline Lender’s Swingline Commitment, (iii) such Swingline Lender’s Revolving Credit Exposures Exposure exceeding such Swingline Lender’s Revolving Commitment (in its capacity as a Lender) or (iv) the Aggregate Revolving Exposure exceeding the total CommitmentsAggregate Revolving Commitment; provided that the (A) no Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and (B) each Swingline Loan shall be made as part of a Borrowing consisting of Swingline Loans made by the Swingline Lenders ratably in accordance with their respective Swingline Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the The failure of any Swingline Lender shall not be obligated to make any Swingline Loan at a time when a required to be made by it shall not relieve any other Swingline Lender is a Defaulting Lender unless of its obligations hereunder; provided that the Swingline Commitments of the Swingline Lenders are several and no Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the shall be responsible for any other Swingline Lender’s risk with respect failure to the Defaulting Lender’s or Defaulting Lenders’ participation in such make Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansLoans as required.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy)or email, not later than 12:00 noon1:00 p.m., New York City time, on the day of a such proposed Swingline Loan. Each such notice shall be irrevocable and shall in the case of a telephonic request be confirmed promptly by hand delivery or email to the Administrative Agent of a written Borrowing Request signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender Lenders of any such notice received from the Borrower. The Each Swingline Lender shall make each its ratable portion of the requested Swingline Loan available to the Borrower by means of a credit to the general deposit an account of the Borrower maintained with the Swingline Lender Administrative Agent designated for 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(e), by remittance to the relevant applicable Issuing Bank or, to the extent that the Revolving Lenders have made payments pursuant to Section 2.05(e) to reimburse such Issuing Bank, to such Revolving Lenders and such Issuing Bank as their interests may appear) by 3:00 p.m., New York City 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 10:00 a.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 its 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 Revolving Lender, specifying in such notice 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 such Swingline LenderLenders, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that, in making any Swingline Loan, each Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrower deemed made pursuant to Section 4.02 unless, at least one Business Day prior to the time such Swingline Loan was made, the Majority in Interest of the Revolving Lenders shall have notified such Swingline Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not be satisfied if such Swingline Loan were then made (it being understood and agreed that, in the event such Swingline Lender shall have received any such notice, it shall have no obligation to make any Swingline Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist). Each Revolving Lender further 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, subject to Section 2.16. 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 LendersRevolving Lenders under this paragraph), and the Administrative Agent shall promptly pay remit to the applicable Swingline Lender Lenders the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the 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 such Swingline LenderLenders. Any amounts received by the a Swingline Lender from the Borrower (or other party Person on behalf of the 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 such 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 LenderLenders, as their interests may appear; provided that any such payment so remitted shall be repaid to the applicable Swingline Lender Lenders or to the Administrative Agent, as applicable, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the Borrower of any default in the payment thereofits obligation to repay such Swingline Loan.
Appears in 2 contracts
Samples: Credit Agreement (Chemours Co), Credit Agreement (Chemours Co)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to may make Swingline Loans in Dollars to the U.S. Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or 15,000,000, (ii) the (A) Aggregate Revolving Credit Exposure exceeding (B) the Aggregate Commitments minus the Aggregate Ancillary Commitments, (iii) the Aggregate Total Exposure exceeding the Aggregate Commitments or (iv) the sum of (I) the total outstanding principal amount of any Lender’s Revolving Credit Exposures Loans and (II) such Lender’s Total Lender Risk Participation exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loansuch Lender’s Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the U.S. Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(ba) To request a Swingline LoanBorrowing, the U.S. Borrower shall notify the Administrative Applicable Agent of such request by telephone (confirmed in a writing acceptable to the Applicable Agent if requested by telecopythe Applicable Agent), not later than 12:00 noon, New York City timeLocal Time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the requested date (which shall be a Business Day) and (ii) the amount of the requested Swingline LoanBorrowing. The Administrative Applicable Agent will shall promptly advise the Swingline Lender of any such notice received from the U.S. Borrower. The Swingline Lender and the U.S. Borrower shall agree upon the interest rate applicable to such Swingline Loan, provided that if such agreement cannot be reached prior to 2:00 p.m., Local Time, on the day of such proposed Swingline Loan then such Swingline Loan shall bear interest at the One-Month LIBO Rate plus the Applicable Rate. Any funding of a Swingline Loan by the Swingline Lender shall be made in accordance with Section 2.02(a) on the proposed date thereof by wire transfer of immediately available funds by 3:00 p.m., Local Time, to the account of the Applicable Agent most recently designated by it for such purpose by notice to the Swingline Lender. The Applicable Agent will make each such Swingline Loan available to the U.S. Borrower by means of a credit promptly crediting the amounts so received, in like funds, to the general deposit account of the U.S. Borrower with the Swingline Lender Applicable Agent (or, in the case of a Swingline Loan Borrowing made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 Applicable Agent not later than 10:00 a.m.1:00 p.m., New York City timeLocal Time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans outstandingLoans. Such notice shall specify the aggregate amount of such Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, the Administrative Applicable Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or LoansRisk Participation with respect to the Swingline Loans then outstanding. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Applicable Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or LoansRisk Participation with respect to the Swingline Loans then outstanding. Each Lender acknowledges and agrees that its respective 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Applicable Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Applicable Agent shall notify the U.S. Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Applicable Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the U.S. Borrower (or other party on behalf of the 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 to the Administrative Applicable Agent; any such amounts received by the Administrative Applicable Agent shall be promptly remitted by the Administrative Applicable Agent to the 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 Applicable Agent, as applicable, if and to the extent such payment is required to be refunded to the U.S. Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the U.S. Borrower of any default in the payment thereof.
(c) Notwithstanding anything herein to the contrary, if there at any time exists a Defaulting Lender, unless such Lender’s Fronting Exposure has been reallocated to other Lenders in accordance with Section 2.24(a), before making any Swingline Loans, the Swingline Lender may condition the provision of such Swingline Loans on its entering into arrangements satisfactory to the Swingline Lender with the Borrower or such Defaulting Lender to eliminate the Swingline Lender’s Fronting Exposure.
Appears in 2 contracts
Samples: Credit Agreement (Miller Herman Inc), Credit Agreement (Miller Herman Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower Borrowers from time to time during the Revolving Availability Period, Period in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of the outstanding Swingline Loans exceeding $10,000,000 75,000,000 or (ii) the sum of the total Aggregate Revolving Credit Exposures Total Exposure exceeding the total Commitmentslesser of (A) the Aggregate Revolving Commitment and (B) the Borrowing Base; 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 Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the applicable Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a the proposed Swingline Loan. Each such notice telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of an executed written Borrowing Request. Each such telephonic and written Borrowing Request shall specify the requested date (which shall be a Business Day) and the amount of the requested Swingline LoanLoan and the location and number of the account of the applicable Borrower to which funds are to be disbursed or, in the case of any Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.06(f), the identity of the Issuing Bank that has made such LC Disbursement. The Promptly following the receipt of a Borrowing Request in accordance with this Section, the Administrative Agent will promptly shall advise the Swingline Lender of any such notice received from the Borrowerdetails thereof. The Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a credit wire transfer to the general deposit account of specified in such Borrowing Request or to the Borrower with the Swingline Lender (orapplicable Issuing Bank, in as the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)may be, by remittance to the relevant 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 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 the Swingline Loans in which the Revolving Lenders will be required to participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agreesagrees to pay, 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 Loans. Each Revolving Lender acknowledges and agrees that, in making any Swingline Loan, the Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of Xxxxxx USA and the Borrowers deemed made pursuant to Section 4.02, unless, at least one Business Day prior to the time such Swingline Loan was made, the Majority in Interest of the Revolving Lenders shall have notified the Swingline Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not be satisfied if such Swingline Loan were then made (it being understood and agreed that, in the event the Swingline Lender shall have received any such notice, it shall have no obligation to make any Swingline Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist). Each Revolving Lender further 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, subject to Section 2.16. 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 LendersRevolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Company and, if the Borrowing Request is made by a Loan Party other than the Company, the applicable 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 Borrower Borrowers (or other party Person on behalf of the BorrowerBorrowers) 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 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 applicable Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the applicable Borrower of any default in the payment thereofits obligation to repay such Swingline Loan.
Appears in 2 contracts
Samples: Credit Agreement (Murphy USA Inc.), Credit Agreement (Murphy USA Inc.)
Swingline Loans. (a) Subject Upon receipt of a Loan Request Certificate as provided in Section 7.10, subject to the terms and conditions set forth hereinhereof and in reliance on the obligations of the Lenders to the Administrative Agent under this Agreement, Administrative Agent may, in its sole discretion, advance a swingline (the "Swingline") in the form of one or more swingline loans (each a "Swingline Lender agrees to make Swingline Loans Loan") to the Borrower from time to time during before the Availability PeriodRevolving Loan Maturity Date on a revolving basis up to $5,000,000 in aggregate principal amount from time to time (the "Swingline Facility") only if the Swingline Loan Exposure will not as a result of such advance exceed the lesser of (i) $5,000,000 or (ii) the Maximum Available Amount. The Administrative Agent may make a Swingline Loan even if after making a Swingline Loan, the Administrative Agent's Pro-Rata Share of the sum of the Aggregate Revolving Loans, the Letter of Credit Exposure, and all outstanding Swingline Loans will exceed the Administrative Agent's Pro-Rata Share of the Aggregate Revolving Loan Commitment. Swingline Loans may be repaid and their principal amount reborrowed before the Revolving Loan Maturity Date, subject to the terms and conditions hereof. No more than five (5) Swingline Loans may be outstanding at any time. All Swingline Loans made by Administrative Agent under the Swingline Facility shall be evidenced by a Swingline Note of the Borrower (the "Swingline Note") payable to the order of Administrative Agent in an aggregate the amount of its Swingline Facility. Without regard to the face principal amount of the Swingline Note, the actual principal amount at any time outstanding that will not result in (i) and owing by the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) Borrower on account thereof during the period ending on the Revolving Loan Maturity Date shall be the sum of the total Revolving Credit Exposures exceeding the total 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 all advances then or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in theretofore made thereon less all principal payments actually received thereon during such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loansperiod.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Samples: Loan Agreement (Talx Corp), Loan Agreement (Talx Corp)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinherein (and if an AutoBorrow Agreement is in effect with respect to the Swingline Lender, subject to the terms and conditions of such AutoBorrow Agreement), the Swingline Lender agrees to make Swingline Loans in Dollars to the Borrower Company from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 the Swingline Sublimit or (ii) the sum Dollar Amount of the total Revolving Credit Exposures exceeding the total CommitmentsAggregate 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 hereinherein (and if an AutoBorrow Agreement is in effect with respect to the Swingline Lender, subject to the terms and conditions of such AutoBorrow Agreement), the Borrower Company may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this No Lender shall have any rights under any AutoBorrow Agreement, but each Lender shall have the obligation to purchase and fund participations in the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansLoans as provided below.
(b) To request a Swingline Loan, (i) if an AutoBorrow Agreement is in effect with respect to the Borrower Swingline Lender, each Swingline Loan from the Swingline Lender and each prepayment thereof shall be made as provided in such AutoBorrow Agreement and (ii) in all other cases, the Company shall notify the Administrative Agent Swingline Lender of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower Company (i) if an AutoBorrow Agreement is in effect with respect to the Swingline Lender, as provided in such AutoBorrow Agreement and (ii) in all other cases, by means of a credit to the general deposit account of the Borrower Company with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower 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 to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower Company (or other party on behalf of the BorrowerCompany) 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower Company for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Company of any default in the payment thereof.
(d) The Swingline Lender may (if an AutoBorrow Agreement is in effect with respect to the Swingline Lender) terminate and/or suspend its agreement to make Swingline Loans in accordance with such AutoBorrow Agreement. Furthermore, the Swingline Lender may be replaced at any time by written agreement among the Company, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of the Swingline Lender. At the time any such replacement shall become effective, the Company shall pay all unpaid interest accrued for the account of the replaced Swingline Lender. From and after the effective date of any such replacement, (i) the successor Swingline Lender shall have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans to be made thereafter and (ii) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the 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 then outstanding and made by it prior to such replacement, but shall not be required to make additional Swingline Loans.
(e) The Swingline Lender agrees that, unless otherwise requested by the Administrative Agent, the Swingline Lender shall report in writing to the Administrative Agent (i) by 11:00 a.m. (New York City time) on each Business Day, the aggregate outstanding amount of Swingline Loans made by the Swingline Lender as of the preceding Business Day (it being understood and agreed that no such notice shall be required to the extent no such amount exists), and (ii) on any Business Day, such other information as the Administrative Agent shall reasonably request.
(f) The Swingline Lender agrees that, unless otherwise requested by the Administrative Agent, such Swingline Lender shall report in writing to the Administrative Agent (i) on the first Business Day of each week, the daily activity (set forth by day) in respect of Swingline Loans during the immediately preceding week, (ii) on or prior to each Business Day on which the Swingline Lender expects to make any Swingline Loan, the date of the making of such Swingline Loan, and the principal amount of the Swingline Loan to be made by it, it being understood that the Swingline Lender shall not permit any Swingline Loan to be made without first obtaining written confirmation from the Administrative Agent that it is then permitted under this Agreement, (iii) on any Business Day on which the Company fails to repay a Swingline Loan required to be repaid to the Swingline Lender on such day, the date of such failure and the amount of such Swingline Loan and (iv) on any other Business Day, such other information as the Administrative Agent shall reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (John Bean Technologies CORP), Credit Agreement (John Bean Technologies CORP)
Swingline Loans. (a) Subject to the terms and conditions herein set forth hereinforth, the Swingline Lender agrees to make Swingline Loans loans to the Borrower Borrowers at any time and from time to time during time, on or after the Availability PeriodClosing Date and, subject to the last sentence of this Section 2.22(a), until the earlier of the applicable Revolving Credit Maturity Date and the termination of the applicable Revolving Credit Commitments, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding all Swingline Loans exceeding $10,000,000 25,000,000 in the aggregate or (ii) the sum of the total Aggregate Revolving Credit Exposures Exposure exceeding the total CommitmentsTotal Revolving Credit Commitment then in effect; provided that notwithstanding 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreementforegoing, the Swingline Lender shall not be obligated to make any Swingline Loan Loans at a time when a Revolving Credit Lender is a Defaulting Lender Lender, unless the Swingline Lender has entered into arrangements reasonably satisfactory to it and the Parent Borrower in accordance with (and after giving effect to any reallocation under) Section 2.26 to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Cash Collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Pro Rata Percentage of the outstanding amount of Swingline Loans. Each Swingline Loan shall be denominated in dollars and shall be in a principal amount that is a minimum amount of $500,000 and integral multiple of $100,000 in excess thereof. The Swingline Commitment may be terminated or reduced from time to time as provided herein. Within the foregoing limits, the Borrowers may borrow, pay or prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions and limitations set forth herein.
(b) To request a Swingline Loan, the The relevant Borrower shall notify the Administrative Agent of such request Swingline Lender by telephone (confirmed by telecopy), fax not later than 12:00 noon, New York City time, 12:30 p.m. on the day of a proposed Swingline Loan. Each such Such notice shall be delivered on a Business Day, shall be irrevocable and shall refer to this Agreement and shall specify the requested date (which shall be a Business Day) and amount of the requested such Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the such requesting Borrower by means of a credit to an account designated by the general deposit account of relevant Borrower promptly on the date such Swingline Loan is so requested.
(c) Each Borrower with shall have the right at any time and from time to time to prepay any Swingline Loan, in whole or in part, upon giving written or fax notice by such Borrower to the Swingline Lender (orbefore 12:30 p.m. on the date of prepayment at the Swingline Lender’s address for notices specified in Section 9.01; provided that any such notice delivered by a Borrower may state that such notice is conditioned upon the effectiveness of other financing arrangements, in which case such notice may be revoked by such Borrower (by notice to the case of a Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(d) Each Swingline Loan made shall be an ABR Loan and, subject to finance the reimbursement provisions of an LC Disbursement Section 2.07, shall bear interest as provided in Section 2.05(e2.06(a), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ce) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, 11:00 a.m. on any Business Day require the Revolving Credit 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 Credit Lenders will participate. Promptly The Administrative Agent will, promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Credit Lender, specifying in such notice such Lender’s Applicable Pro Rata Percentage of such Swingline Loan or LoansLoan. Each In furtherance of the foregoing, each Revolving Credit 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 Revolving Credit Lender’s Applicable Pro Rata Percentage of such Swingline Loan or LoansLoan. Each Revolving Credit Lender acknowledges and agrees that that, subject to the express provisions of Section 2.09(d), 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 reduction or termination an Event of the CommitmentsDefault, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Revolving Credit 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 2.02(c) with respect to Loans made by such Lender (and Section 2.06 2.02(c) shall apply, mutatis mutandis, to the payment obligations of the Lenders), ) and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Credit Lenders. The Administrative Agent shall notify the Parent 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 amounts received by the Swingline Lender from the relevant Borrower (or other party on behalf of the BorrowerBorrowers) 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall and be promptly remitted distributed by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the relevant Borrower (or other party liable for obligations of the Borrowers) of any default in the payment thereof.
(f) If the Revolving Credit Maturity Date shall have occurred in respect of any Class of Revolving Credit Commitments at a time when another Class or Classes of Revolving Credit Commitments is or are in effect with a longer Revolving Credit Maturity Date, then on the earliest occurring Revolving Credit Maturity Date all then outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such Revolving Credit Maturity Date); provided, however, that if on the occurrence of such earliest Revolving Credit Maturity Date (after giving effect to any repayments of Revolving Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.23(n)), there shall exist sufficient unutilized Extended Revolving Credit Commitments so that the respective outstanding Swingline Loans could be incurred pursuant to the Extended Revolving Credit Commitments which will remain in effect after the occurrence of such Revolving Credit Maturity Date (and to the extent the applicable Extension provided for Swingline Loans under such Extended Revolving Credit Commitments), then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and same shall be deemed to have been incurred solely pursuant to the relevant Extended Revolving Credit Commitments and such Swingline Loans shall not be so required to be repaid in full on such earliest Revolving Credit Maturity Date.
Appears in 2 contracts
Samples: Credit Agreement (VWR Corp), Credit Agreement (VWR Corp)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the Swingline Lender agrees to may, in its sole discretion, make loans for the Swingline Loans Lender’s own account (each a “Swingline Loan”) to the extent the same would otherwise have been available to the US Borrower from time to time during under the Availability Period, US Total Revolving Credit Commitment in an aggregate principal amount at any one time outstanding up to, but not exceeding, $15,000,000; provided, however, that will not result in (i) at no time shall the Swingline Lender make any Swingline Loan to the extent that, after giving effect to such Swingline Loan, the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total each US Lender’s US Revolving Credit Exposures exceeding Exposure at such time would exceed the total CommitmentsUS Availability or the amount of any US Lender’s US Revolving Credit Exposure at such time would exceed such US Lender’s US Revolving Credit Commitment; and provided further, however, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within not, without the foregoing limits and subject to consent of the terms and conditions set forth hereinRequired Lenders, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless if any Event of Default exists of which the Swingline Lender has entered into arrangements satisfactory to it actual knowledge. Each Swingline Loan shall be an Alternate Base Rate Borrowing and shall in any event mature no later than the Borrower to eliminate the Swingline Lender’s risk with respect Revolving Credit Termination Date. Subject to the Defaulting Lender’s or Defaulting Lenders’ participation conditions herein and within the limits set forth in such the first sentence of this paragraph, any Swingline Loans, including Loan prepaid prior to the Revolving Credit Termination Date may be reborrowed as an additional Swingline Loan by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage the US Borrower pursuant to the terms of the outstanding Swingline Loansthis Agreement.
(b) To request a Swingline Loan, the US Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time1:00 p.m., on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the US Borrower. The , and subject to the terms of this Agreement, the Swingline Lender shall may make each a Swingline Loan available to the US Borrower by means of a credit to the general deposit account of the US Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, 5:00 p.m. on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later demand at any time (but in no event shall such demand be made less frequently than 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to once per each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each calendar month) that each US Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the US Administrative Agent, for the account of the Swingline Lender, in the manner provided below, such US Lender’s Applicable US Revolving Credit Commitment Percentage of such Swingline Loan all or Loans. Each 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 reduction or termination portion of the Commitmentsoutstanding Swingline Loans, and that each such payment which demand shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and through the Administrative Agent Agent, shall promptly pay be in writing and shall specify the outstanding principal amount of Swingline Loans demanded to the Swingline Lender the amounts so received by it from the Lendersbe paid. The Administrative Agent shall notify forward notice of each such demand to each US Lender on the day such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 1:00 p.m. on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each US Lender’s Commitment Percentage of the aggregate principal amount of the Swingline Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Sections 4.1 or 4.2 shall have been satisfied (which conditions precedent, for the purposes of payment of Swingline Loans only, the US Lenders hereby irrevocably waive), each US Lender shall, before 10:00 a.m. on the Business Day next succeeding the date of such US Lender’s receipt of such notice, make available to the US Administrative Agent, in immediately available funds, for the account of the Swingline Lender, the amount specified in such statement, provided that such amount shall not cause such US Lender’s US Revolving Credit Exposure to exceed such US Lender’s US Revolving Credit Commitment. Upon such payment by a US Lender, such US Lender shall, except as provided in Section 2.11(d) below, be deemed to have made a US Revolving Loan to the US Borrower in the amount of such payment. The US Borrower agrees that all such US Revolving Loans so deemed made shall be deemed to have been requested by it and directs that all proceeds thereof shall be used to repay the Swingline Loans to the Swingline Lender, and the US Administrative Agent shall use such funds received from the US Lenders to repay the Swingline Loans to the Swingline Lender. To the extent that any US Lender fails to make such payment available to the US Administrative Agent for the account of the Swingline Lender, the US Borrower shall repay such Swingline Loan on demand.
(d) Upon the occurrence of any participations Event of Default described in any Sections 8.1(o) through 8.1(r), each US Lender shall acquire, without recourse or warranty, an undivided participation in each Swingline Loan acquired otherwise required to be repaid by such US Lender pursuant to this paragraphSection 2.11(c) above, and thereafter payments which participation shall be in a principal amount equal to such US Lender’s Commitment Percentage of such Swingline Loan, by paying to the Swingline Lender on the date on which such US Lender would otherwise have been required to make a payment 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and Section 2.11(c) above, in immediately available funds, an amount equal to the such Lender’s Commitment Percentage of such Swingline Lender, as their interests may appear; provided that any Loan. If all or part of such payment so remitted shall be repaid amount is not in fact made available by such US Lender to the Swingline Lender or on such date, the Swingline Lender shall be entitled to recover any such unpaid amount on demand from such US Lender together with interest accrued from such date at the Administrative Agent, as applicable, if and to Federal Funds Rate for the extent first Business Day after such payment was due and thereafter at the rate of interest then applicable to Alternate Base Rate Borrowings.
(e) From and after the date on which any US Lender (i) is required deemed to be refunded have made a US Revolving Loan pursuant to the Borrower for Section 2.11(c) above with respect to any reason. The purchase of participations Swingline Loan or (ii) purchases an undivided participation interest in a Swingline Loan pursuant to this paragraph Section 2.11(d) above, the Swingline Lender shall not relieve promptly distribute to such US Lender such US Lender’s Commitment Percentage of all payments of principal of and interest received by the Borrower Swingline Lender on account of any default in the payment thereofsuch Swingline Loan other than those received from a US Lender pursuant to Sections 2.11(c) or (d) above.
Appears in 2 contracts
Samples: Credit Agreement (Animal Health International, Inc.), Credit Agreement (Animal Health International, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make swingline loans (“Swingline Loans Loans”) to the Borrower from time to time during on and after the Availability PeriodClosing Date and until the Latest Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding not to exceed $5,000,000; provided that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a any Swingline Loan to refinance an any outstanding Swingline Loan and (ii) after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall not exceed the Total Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than $50,000 or such lesser amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, any Swingline Loan may be in an aggregate amount that is (1) equal to the entire unused balance of the aggregate unused Revolving Credit Commitments or (2) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(d). Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Swingline Loans may borrowbe borrowed, prepay prepaid and reborrow Swingline Loansreborrowed. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Swingline Lender (with a copy to the Administrative Agent Agent) of such request by telephone (confirmed delivery of a written Borrowing Request, appropriately completed and signed by telecopy)a Responsible Officer of the Borrower, not later than 12:00 noon, New York City time, p.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower on the same Business Day by means of a credit to the general deposit account designated in the related Borrowing Request or otherwise in accordance with the instructions of the Borrower with the Swingline Lender (orincluding, in the case of a Swingline Loan made to finance the reimbursement of an any LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 (and in any event, if such notice is received by 11:00 a.m12:00 p.m. on a Business Day, no later than 10:00 a.m.4:00 p.m. on such Business Day and if received after 11:00 a.m12:00 p.m., New York City time, “on a Business Day” shall mean no later than 9:00 a.m. on the immediately succeeding Business Day) on any Business Day require the Revolving Lenders to acquire participations purchase a participation on such the 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 Revolving Lender, specifying in such notice 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 LenderXxxxxx’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, subject to Section 2.16. Each Revolving Lender shall comply with its obligation under this paragraph by effecting a 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 LendersRevolving Lenders pursuant to this Section 2.04(b)), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations participation in any Swingline Loan acquired pursuant to this paragraphSection 2.04(b), and thereafter payments any payment 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 Borrower (or other party on behalf of the Borrower) 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; , and any such amounts amount received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders each Revolving Lender that shall have has made their payments its payment 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 to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded funded to the Borrower for any reason, such payment shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrower. The purchase of participations in a Swingline Loan pursuant to this paragraph Section 2.04(b) shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Samples: Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.)
Swingline Loans. (a) Subject to the terms and conditions hereinafter set forth hereinforth, upon notice by the US Borrower made to the Swingline Lender in accordance with Section 2.7.2 hereof, the Swingline Lender agrees to make lend to the US Borrower Swingline Loans on any US Business Day prior to the Borrower from time to time during the Availability Period, Swingline Expiry Date in an aggregate principal amount not to exceed the Swingline Sublimit. Each Swingline Loan shall be in a minimum amount equal to $500,000 or a multiple of $100,000 in excess thereof. Notwithstanding any other provisions of this Credit Agreement and in addition to the limit set forth above, at any no time outstanding that will not result in (i) shall the aggregate principal amount of outstanding Total Revolver Exposure exceed the Total Commitment at such time. The Swingline Loans exceeding $10,000,000 or (ii) are being made for the sum administrative convenience of the total Revolving US Borrower, the Swingline Lender and the Lenders. Notwithstanding any other provisions of this Credit Exposures exceeding the total Commitments; provided that Agreement, the Swingline Lender shall not advance any Swingline Loans after it has received notice from any Lender or the Administrative Agent that a Default or Event of Default has occurred and is continuing and stating that no new Swingline Loans are to be required made until such Default or Event of Default has been cured or waived in accordance with the provisions of this Credit Agreement. The Swingline Lender shall not be obligated to make any Swingline Loans at any time when any Lender is a Delinquent Lender unless the Swingline Loan Lender has entered into arrangements satisfactory to refinance an it to eliminate the Swingline Lender's risk with respect to such Delinquent Lender, including by cash collateralizing such Delinquent Lender's Commitment Percentage of the outstanding Swingline LoanLoans and any such additional Swingline Loans to be made. Within the foregoing limits and subject to the terms and conditions set forth herein, the US Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
Swingline Loans. (a) Subject to The Swingline Lender (other than the MXN Swingline Lender) agrees, on the terms and subject to the conditions set forth herein, the Swingline Lender agrees to make Swingline Loans a portion of the Revolving A Commitment available to the any Revolving A Borrower from time to time during prior to the Availability PeriodSwingline Termination Date by making Swingline Loans denominated in Dollars, Sterling or Euros to such Borrower, in each case in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount Dollar Equivalent of outstanding the Swingline Loans made by the Swingline Lender outstanding at any one time exceeding $10,000,000 or the Swingline Commitment, (ii) with regard to each Revolving A Lender individually (other than the sum Swingline Lender in its capacity as such), the Dollar Equivalent of such Lender’s Revolving A Credit Exposure exceeding such Lender’s Revolving A Commitment, or (iii) with regard to the total Revolving A Lenders collectively, the Aggregate Revolving A Credit Exposures Exposure exceeding the total Commitments; Aggregate Revolving A 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated at any time to make any Swingline Loan at a time when a if any Revolving A Lender is at that time a Defaulting Lender and after giving effect to any reallocation of the Participation Interest of such Defaulting Lender pursuant to Section 4.11.1(d), the Swingline Lender has any actual or potential Fronting Exposure with respect to such Defaulting Lender arising from the Swingline Loan proposed to be made, unless the Swingline Lender has entered into arrangements arrangements, including the delivery of cash collateral, satisfactory to it and the Swingline Lender (in its sole discretion) with the Parent Borrower or such Defaulting Lender to eliminate such Fronting Exposure. Swingline Loans may be repaid and reborrowed in accordance with the provisions hereof prior to the Swingline Lender’s risk with respect Termination Date. The proceeds of any Swingline Loan may be used, in whole or in part, to the Defaulting Lender’s or Defaulting Lenders’ participation in such refund any prior Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansLoan.
(b) To The Parent Borrower (for itself or on behalf of any other Revolving A Borrower) shall request a Swingline Loan (other than a MXN Swingline Loan, ) by irrevocable written notice (or telephone notice promptly confirmed in writing) substantially in the Borrower shall notify form of Exhibit A–2 hereto (a “Swingline Loan Request”) to the Swingline Lender and the Administrative Agent of such request by telephone (confirmed by telecopy), i) not later than 12:00 noon3:00 p.m. Charlotte, New York City time, North Carolina time on the day date of funding a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify Loan denominated in Dollars in the requested date (United States which shall be a Business Day, (ii) and amount not later than 5:00 p.m. Charlotte, North Carolina time on the Business Day prior to the date of funding a Swingline Loan denominated in Dollars outside of the United States which shall be a Business Day and (iii) not later than 11:00 a.m. Charlotte, North Carolina time on the Business Day prior to the date requested to borrow a Swingline Loan denominated in Sterling or Euros. Each Swingline Loan (other than a MXN Swingline Loan. The Administrative Agent will promptly advise ) shall be made as a LIBOR Market Index Rate Loan and, in each case, subject to Section 2.6.1(c), shall have such maturity date as agreed to by the Swingline Lender of any such notice received from and the Parent Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate outstanding principal amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 due and payable on the earliest of (i) the maturity date agreed to by the applicable Swingline Lender and the Parent Borrower with respect to such Swingline Loan, which shall not be longer than 30 days after the date of borrowing, (ii) the Swingline Termination Date, (iii) the occurrence of a Bankruptcy Event with respect to the Administrative Agent Parent Borrower, any Guarantor or any Foreign Subsidiary Borrower with Obligations then outstanding under this Agreement and not to (iv) the Swingline Lender. Any amounts received by acceleration of any Loan or the Swingline Lender from the Borrower (or other party on behalf termination of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments Aggregate Commitment 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofSection 11.2.1.
Appears in 1 contract
Samples: Credit Agreement (Brinks Co)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the each Swingline Lender severally agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 50,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total CommitmentsRevolving Commitments or (iii) the aggregate principal amount of outstanding Swingline Loans made by such Swingline Lender to exceed its ratable share (based on the then number of Swingline Lenders) of the $50,000,000 Swingline Loan sublimit or (iv) the sum of (x) the outstanding principal amount of such Lender’s Revolving Loans, plus (y) the aggregate Swingline exposure of such Lender (including the entire outstanding principal amount of Swingline Loans made by such Lender and the Swingline Exposure of such Lender with respect to Swingline Loans made by other Lenders), plus (z) the aggregate letter of credit exposure of such Lender (including the sum of the aggregate undrawn amount of all outstanding Letters of Credit issued by such Lender at such time plus the aggregate amount of all LC Disbursements under such Letters of Credit that have not yet been reimbursed by or on behalf of the Borrower at such time and the LC Exposure of such Lender with respect to Letters of Credit issued by other Lenders) exceeding the amount of such Swingline Lender’s then Revolving Commitment; provided that the no 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone to the Administrative Agent (confirmed promptly by telecopyhand delivery, or delivery through an electronic platform or electronic transmission system approved by the Administrative Agent), not later than 12:00 noon, New York City time, on the day of a proposed Swingline LoanLoan Borrowing. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Promptly following receipt of a request for a Swingline Loan in accordance with this Section, the Administrative Agent will promptly shall advise the each Swingline Lender of any such notice received from the Borrowerdetails thereof. The Each Swingline Lender shall make each available to Administrative Agent its ratable share (based on the then number of Swingline Lenders) of such Swingline Loan on or before 2:00 p.m., New York City time, on the day of the proposed Swingline Loan Borrowing and Administrative Agent shall make such Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (Administrative Agent or, (in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the relevant applicable Issuing Bank) by 3:00 p.m., New York City 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 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 outstandingoutstanding made by such Swingline Lender. 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 such Lender’s Applicable Revolving Percentage of such Swingline Loan or 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 each Swingline Lender, as applicable, such Lender’s Applicable Revolving Percentage of such Swingline Loan or 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 reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. 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), and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the 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 LenderLender which originally made such Swingline Loan. Any amounts received by the a Swingline Lender from the Borrower (or other party on behalf of the 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 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 applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Invitation Homes Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to may make Swingline Loans in Dollars to the U.S. Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or 15,000,000, (ii) the (A) Aggregate Revolving Credit Exposure exceeding (B) the Aggregate Commitments minus the Aggregate Ancillary Commitments, (iii) the Aggregate Total Exposure exceeding the Aggregate Commitments or (iv) the sum of (I) the total outstanding principal amount of any Lender’s Revolving Credit Exposures Loans and (II) such Lender’s Total Lender Risk Participation exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loansuch Lender’s Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the U.S. Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline LoanBorrowing, the U.S. Borrower shall notify the Administrative Applicable Agent of such request by telephone (confirmed in a writing acceptable to the Applicable Agent if requested by telecopythe Applicable Agent), not later than 12:00 noon, New York City timeLocal Time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the requested date (which shall be a Business Day) and (ii) the amount of the requested Swingline LoanBorrowing. The Administrative Applicable Agent will shall promptly advise the Swingline Lender of any such notice received from the U.S. Borrower. The Swingline Lender and the U.S. Borrower shall agree upon the interest rate applicable to such Swingline Loan, provided that if such agreement cannot be reached prior to 2:00 p.m., Local Time, on the day of such proposed Swingline Loan then such Swingline Loan shall bear interest at the One‑Month LIBO Rate plus the Applicable Margin. Any funding of a Swingline Loan by the Swingline Lender shall be made in accordance with Section 2.02(a) on the proposed date thereof by wire transfer of immediately available funds by 3:00 p.m., Local Time, to the account of the Applicable Agent most recently designated by it for such purpose by notice to the Swingline Lender. The Applicable Agent will make each such Swingline Loan available to the U.S. Borrower by means of a credit promptly crediting the amounts so received, in like funds, to the general deposit account of the U.S. Borrower with that has been identified by the Swingline Lender U.S. Borrower to the Applicable Agent (or, in the case of a Swingline Loan Borrowing made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 Applicable Agent not later than 10:00 a.m.1:00 p.m., New York City timeLocal Time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans outstandingLoans. Such notice shall specify the aggregate amount of such Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, the Administrative Applicable Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or LoansRisk Participation with respect to the Swingline Loans then outstanding. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Applicable Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or LoansRisk Participation with respect to the Swingline Loans then outstanding. Each Lender acknowledges and agrees that its respective 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Applicable Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Applicable Agent shall notify the U.S. Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Applicable Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the U.S. Borrower (or other party on behalf of the 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 to the Administrative Applicable Agent; any such amounts received by the Administrative Applicable Agent shall be promptly remitted by the Administrative Applicable Agent to the 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 Applicable Agent, as applicable, if and to the extent such payment is required to be refunded to the U.S. Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the U.S. Borrower of any default in the payment thereof.
(d) Notwithstanding anything herein to the contrary, if there at any time exists a Defaulting Lender, unless such Lender’s Fronting Exposure has been reallocated to other Lenders in accordance with Section 2.24(a), before making any Swingline Loans, the Swingline Lender may condition the provision of such Swingline Loans on its entering into arrangements satisfactory to the Swingline Lender with the Borrower or such Defaulting Lender to eliminate the Swingline Lender’s Fronting Exposure.
Appears in 1 contract
Samples: Credit Agreement (Miller Herman Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 25% of the total Commitments at such time or (ii) the sum of the total Revolving Credit Exposures exceeding the total 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request in the form of a Borrowing Request signed by telephone (confirmed by telecopy)the Borrower, not later than 12:00 noon11:00 a.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrowerby it. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, or disbursement to such other account of the Borrower as the Borrower may specify in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, its Borrowing Request on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall promptly notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Samples: Credit Agreement (KKR Real Estate Finance Trust Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the any Borrower from time to time during the Availability PeriodPeriod in Dollars, in an aggregate principal amount at any time outstanding that will not result in (ix) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 the Swingline Loan Sublimit or (iiy) the sum aggregate principal amount of the total Revolving Credit Exposures exceeding the total Revolving Commitments; provided that (I) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and (II) the Swingline Lender shall not be required to make any Swingline Loan to the extent the aggregate principal amount of the Revolving Loans made by the Lender acting as Swingline Lender that are then outstanding, when aggregated with the aggregate principal amount of Swingline Loans, would exceed the amount of such Lender’s Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower Agent shall notify the Administrative Agent of such request by telephone (confirmed by telecopytelecopy or transmission by electronic communication), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be in the form attached hereto as Exhibit B‑5 and shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice of a request for a Swingline Loan Borrowing received from the applicable Borrower. The Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a credit to the general deposit account of the such Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank or, to the extent that the Applicable Participants have made payments pursuant to Section 2.05(e) to reimburse the applicable Issuing Bank, to such Applicable Participants and such Issuing Bank as their interests may appear) 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 10:00 a.m., New York City time, on any Business Day require the Lenders Applicable Participants to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such Each such notice shall specify the aggregate amount of Swingline Loans in which Lenders the Applicable Participants will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each LenderApplicable Participant, specifying in such notice such LenderApplicable Participant’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender Applicable Participant 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 LenderApplicable Participant’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender Applicable Participant 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender Applicable Participant 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 Applicable Participant (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the LendersApplicable Participants), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the LendersApplicable Participants. The Administrative Agent shall notify the 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 applicable Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders Applicable Participants 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 a Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the any Borrower of any default in the payment thereof.
(d) Any Swingline Lender may be replaced at any time by written agreement among the Borrower Agent, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective the Borrower Agent shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.12(a). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the 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 its replacement, but shall not be required to make 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 days’ prior written notice to the Administrative Agent, the Borrower Agent and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.04(d) above.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees in its individual capacity agrees, at any time and from time to time on and after the Closing Date, to make a loan or loans (each a “Swingline Loans Loan” and, collectively, the “Swingline Loans”) to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 0 or (ii) the sum of the total Revolving Credit Exposures exceeding the total CommitmentsTotal Commitment; provided that (A) each Swingline Loan shall be in a minimum amount of $1,000,000 and shall be repayable in full as provided in Section 2.09, and (B) 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m.12:00 noon, New York City York, New York, time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute irrevocable and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of the CommitmentsTotal Commitment, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender shall comply 33 Revolving Credit Facility 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 for the account of the Lenders and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the Administrative AgentAgent for the account of the Lenders; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the a Swingline Lender agrees to may make Swingline Loans to the Revolving Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the Dollar Equivalent of the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or 100,000,000, (ii) the sum Aggregate Revolving Credit Exposure exceeding the Aggregate Commitments, (iii) the Swingline Exposure of a Swingline Lender exceeding such Swingline Lender’s Commitment (in its capacity as a Lender) or (iv) the Revolving Credit Exposure of any Lender exceeding its Commitment. Upon the Borrowing of any Loan under Section 2.01, any outstanding Swingline Loans shall be repaid in full. Swingline Loans with respect to a particular currency shall be made ratably (on a several and not joint basis and calculated based on such Swingline Lender’s Commitment to the total Revolving Credit Exposures exceeding the total Commitments; provided that the Commitments of all applicable Swingline Lenders of such currency) by each applicable Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loanof such currency. Within the foregoing limits and subject to the terms and conditions set forth herein, the Revolving Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline LoanBorrowing:
(i) in the case of a Swingline Loan denominated in Dollars to the Revolving Borrower, the Revolving Borrower shall notify the Administrative Agent of such request (which request shall be in writing or by telephone confirmed promptly by means of a written Borrowing Request delivered to the Administrative Agent in a form approved by the Administrative agent and signed by the Revolving Borrower (confirmed it being agreed no obligation to fund any Swingline Loan shall arise until the later of (x) the required funding time set forth herein and (y) 30 minutes after receipt of such written Borrowing Notice), unless otherwise agreed to by telecopythe Administrative Agent), not later than 12:00 noon2:30 p.m. (or such other time agreed to by the Revolving Borrower and the applicable Swingline Lender), New York City time, on the day of such proposed Swingline Loan, and
(ii) in the case of any other Swingline Loan, the Revolving Borrower shall notify the Administrative Agent of such request (which request shall be in writing or by telephone confirmed promptly by means of a written Borrowing Request delivered to the Administrative Agent in a form approved by the Administrative agent and signed by the Revolving Borrower (it being agreed no obligation to fund any Swingline Loan shall arise until the later of (x) the required funding time set forth herein and (y) 30 minutes after receipt of such written Borrowing Notice), unless otherwise agreed to by the Administrative Agent), not later than 10:00 a.m. (or such other time agreed to by the Revolving Borrower and such Swingline Lender), Local time, on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (A) the requested date (which shall be a Business Day), (B) and whether such Swingline Loan is to be denominated in Dollars or a Foreign Currency, (C) the amount of the requested Swingline Borrowing, and (D) in the case of a Swingline Borrowing denominated in a Foreign Currency, the Interest Period requested to be applicable thereto, which shall be a period contemplated by clause (b) of the definition of the term "Interest Period." The Administrative Agent shall promptly advise the applicable Swingline Lender or the Affiliate designated by the applicable Swingline Lender for such Swingline Borrowing of any such notice received. In the case of Swingline Loans that are not denominated in Dollars, the applicable Swingline Lender and the Revolving Borrower shall agree upon the interest rate applicable to such Swingline Loan, provided that if such agreement cannot be reached prior to 10:00 a.m., Local Time, on the day of any proposed Swingline Loan, or, such other time agreed to by the applicable Swingline Lender and the Revolving Borrower, then such Swingline Loan shall not be made. In addition to any other requirements for obtaining a Swingline Loan, the Revolving Borrower shall comply with all applicable legal and regulatory requirements. Any funding of a Swingline Loan by a Swingline Lender shall be made on the proposed date thereof by 3:30 p.m., Local Time, to the account of the Administrative Agent. The Administrative Agent will promptly advise the Swingline Lender of any make such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Revolving Borrower by means of a credit promptly crediting the amounts so received, in like funds, to the general deposit account of the Revolving Borrower with the Swingline Lender Administrative Agent (or, in the case of a Swingline Loan Borrowing made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant applicable Issuing Bank). The Administrative Agent shall determine the procedures to be followed by the Swingline Lenders to ensure that the Dollar Equivalent of the aggregate principal amount of the Swingline Loans does not exceed the amount permitted by Section 2.04(a) at the time any Swingline Loan is made and to ensure that the amount of Advances made does not exceed the amounts permitted by 3:00 p.m.Section 2.01, New York City timeand each Swingline Lender and the other parties hereto agrees to abide by such procedures. If the Swingline Loans at any time exceed any of the amounts permitted by Section 2.01 or 2.04(a), on the requested date Revolving Borrower shall promptly prepay the relevant Swingline Loans by the amount of such Swingline Loanexcess.
(c) The Each Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 p.m., New York City timetime (or 11:00 a.m. London time in the case of any Swingline Loan denominated in any Foreign Currency), on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans outstandingLoans. Such notice shall specify the aggregate amount of such Swingline Loans in which the Lenders will participate, and such Swingline Loans, if denominated in Foreign Currency, shall be converted to Dollars and shall bear interest at the Alternate Base Rate plus the Applicable Margin. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s 's Applicable Adjusted Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the applicable Swingline Lender, such Lender’s 's Applicable Adjusted Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its respective 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Revolving Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph (c), 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 Revolving Borrower (or other party on behalf of the Revolving 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 applicable, if and to the extent such payment is required to be refunded to the Revolving Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Revolving Borrower of any default in the payment thereofthereof and the Revolving Borrower shall reimburse each Lender for any amounts that may be due under Section 2.14, 2.16, 2.19 or any other term of this Agreement.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the a Swingline Lender agrees to may make Swingline Loans to the Revolving Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the Dollar Equivalent of the aggregate principal amount of outstanding Swingline Loans, other than Swingline Shekel Loans and Swingline Peso Loans, exceeding $10,000,000 or 50,000,000, (ii) the sum Dollar Equivalent of the total aggregate principal amount of outstanding Swingline Shekel Loans exceeding $15,000,000, (iii) the Dollar Equivalent of the aggregate principal amount of outstanding Swingline Peso Loans exceeding $15,000,000 or (iv) the Aggregate Revolving Credit Exposures Exposure exceeding the total Aggregate Commitments; provided that . Notwithstanding the foregoing, (x) the Swingline Shekel Lender may only make Swingline Shekel Loans and shall not be required to make a any other Swingline Loan to refinance an outstanding Loans, and any other Swingline LoanLender may not make Swingline Shekel Loans and (y) the Swingline Peso Lender may only make Swingline Peso Loans and shall not make any other Swingline Loans, and any other Swingline Lender may not make Swingline Peso Loans. Within the foregoing limits and subject to the terms and conditions set forth hereinherein (or as otherwise agreed to among the Revolving Borrower, the Administrative Agent, Swingline Shekel Lender and the Swingline Peso Lender), the Revolving Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline LoanBorrowing:
(i) in the case of a Swingline Loan denominated in Dollars to the Revolving Borrower, the Revolving Borrower shall notify the Administrative Agent of such request (which request shall be in writing or by telephone confirmed promptly by means of a written Borrowing Request delivered to the Administrative Agent in a form approved by the Administrative agent and signed by the Revolving Borrower (confirmed it being agreed no obligation to fund any Swingline Loan shall arise until the later of (x) the required funding time set forth herein and (y) 30 minutes after receipt of such written Borrowing Notice), unless otherwise agreed to by telecopythe Administrative Agent), not later than 12:00 noon2:30 p.m. (or such other time agreed to by the Revolving Borrower and the applicable Swingline Lender), New York City time, on the day of such proposed Swingline Loan,
(ii) in the case of a Swingline Shekel Loan, the Revolving Borrower shall notify the Swingline Shekel Lender directly in accordance with the standard borrowing procedures and written terms and conditions signed by the Revolving Borrower in favor the Swingline Shekel Lender prior to the date hereof by 2:00 p.m. (or such other time agreed to by the Revolving Borrower and the Swingline Shekel Lender), Local Time, on the day of a proposed Swingline Shekel Loan,
(iii) in the case of a Swingline Peso Loan, the Revolving Borrower shall notify the Swingline Peso Lender directly in accordance with the standard borrowing procedures and written terms and conditions signed by the Revolving Borrower in favor the Swingline Peso Lender prior to the date hereof by 2:00 p.m. (or such other time agreed to by the Revolving Borrower and the Swingline Peso Lender), Local Time, on the day of a proposed Swingline Peso Loan, and
(iv) in the case of any other Swingline Loan, the Revolving Borrower shall notify the Administrative Agent of such request (which request shall be in writing or by telephone confirmed promptly by means of a written Borrowing Request delivered to the Administrative Agent in a form approved by the Administrative agent and signed by the Revolving Borrower (it being agreed no obligation to fund any Swingline Loan shall arise until the later of (x) the required funding time set forth herein and (y) 30 minutes after receipt of such written Borrowing Notice), unless otherwise agreed to by the Administrative Agent), not later than 10:00 a.m. (or such other time agreed to by the Revolving Borrower and such Swingline Lender), Local time, on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (A) the requested date (which shall be a Business Day), (B) and whether such Swingline Loan is to be denominated in Dollars or a Foreign Currency, (C) the amount of the requested Swingline Borrowing, and (D) in the case of a Swingline Borrowing denominated in a Foreign Currency, the Interest Period requested to be applicable thereto, which shall be a period contemplated by clause (b) of the definition of the term “Interest Period.” The Administrative Agent shall promptly advise the applicable Swingline Lender or the Affiliate designated by the applicable Swingline Lender for such Swingline Borrowing of any such notice received. In the case of Swingline Loans that are not denominated in Dollars, the applicable Swingline Lender and the Revolving Borrower shall agree upon the interest rate applicable to such Swingline Loan, provided that if such agreement cannot be reached prior to 2:00 p.m., Local Time, on the day of a proposed Swingline Shekel Loan (or such other time agreed to between the Revolving Borrower and the Swingline Shekel Lender), prior to 2:00 p.m., Local Time, on the day of a proposed Swingline Peso Loan (or such other time agreed to between the Revolving Borrower and the Swingline Peso Lender) and prior to 10:00 a.m., Local Time, on the day of any other proposed Swingline Loan, or, in each of the foregoing cases, such other time agreed to by the applicable Swingline Lender and the Revolving Borrower, then such Swingline Loan shall not be made. In addition to any other requirements for obtaining a Swingline Loan, the Revolving Borrower shall comply with all applicable legal and regulatory requirements. Any funding of a Swingline Loan by a Swingline Lender shall be made on the proposed date thereof by 3:30 p.m., Local Time, to the account of the Administrative Agent, in case of a Swingline Shekel Loan, to the account of the Swingline Shekel Lender by 3:00 p.m. (or such other time agreed to by the Revolving Borrower and the Swingline Shekel Lender), Local Time, or, in case of a Swingline Peso Loan, to the account of the Swingline Peso Lender by 3:00 p.m. (or such other time agreed to by the Revolving Borrower and the Swingline Peso Lender), Local Time. The Administrative Agent will promptly advise the Swingline Lender of any make such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Revolving Borrower by means of a credit promptly crediting the amounts so received, in like funds, to the general deposit account of the Revolving Borrower with the Swingline Lender Administrative Agent (or, in the case of a Swingline Loan Borrowing made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant applicable Issuing Bank); provided that, in the case of a Swingline Shekel Loan, the Swingline Shekel Lender will make such Swingline Loan available to the Revolving Borrower by promptly crediting the amounts so received, in like funds, to the account of the Revolving Borrower with the Swingline Shekel Lender or pursuant to such other procedures agreed to between the Revolving Borrower and the Swingline Shekel Lender, and, in the case of a Swingline Peso Loan, the Swingline Peso Lender will make such Swingline Loan available to the Revolving Borrower by promptly crediting the amounts so received, in like funds, to the account of the Revolving Borrower with the Swingline Peso Lender or pursuant to such other procedures agreed to between the Revolving Borrower and the Swingline Peso Lender. The Administrative Agent shall determine the procedures to be followed by the Swingline Lenders to ensure that the Dollar Equivalent of the aggregate principal amount of the Swingline Loans does not exceed the amount permitted by Section 2.04(a) at the time any Swingline Loan is made and to ensure that the amount of Advances made does not exceed the amounts permitted by 3:00 p.m.Section 2.01(a), New York City timeand each Swingline Lender and the other parties hereto agrees to abide by such procedures. Without limiting such procedures, for purposes of determining the amount of any Borrowing that is permitted to be made under Section 2.01 or 2.04(a), the Administrative Agent may at any time assume that the Dollar Equivalent of the aggregate amount of (x) Swingline Shekel Loans is equal to $15,000,000 unless the request for such Borrowing delivered to the Administrative Agent specifies the Dollar Equivalent of the aggregate amount of Swingline Shekel Loans on the requested date day of such request and on the day such Borrowing is to be made, and the Administrative Agent shall be entitled to rely thereon in determining the permissible amount of such Borrowing and (y) Swingline LoanPeso Loans is equal to $15,000,000 unless the request for such Borrowing delivered to the Administrative Agent specifies the Dollar Equivalent of the aggregate amount of Swingline Peso Loans on the day of such request and on the day such Borrowing is to be made, and the Administrative Agent shall be entitled to rely thereon in determining the permissible amount of such Borrowing. If the Swingline Loans at any time exceed any of the amounts permitted by Section 2.01(a) or 2.04(a), the Revolving Borrower shall promptly prepay the relevant Swingline Loans by the amount of such excess.
(c) The Each Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.2:00 p.m., New York City timetime (or 11:00 a.m. London time in the case of any Swingline Loan denominated in any Foreign Currency), on any Business Day require the Lenders to acquire participations on or within two Business Days after such Business Day in all or a portion of the outstanding Swingline Loans outstandingLoans, provided that the Swingline Shekel Lender and the Swingline Peso Lender may do so only upon and during the continuance of an Event of Default or as otherwise agreed to among the U.S. Borrower, the Administrative Agent and the Swingline Shekel Lender, in case of Swingline Shekel Loans, or the Administrative Agent and the Swingline Peso Lender, in case of Swingline Peso Loans. Such notice shall specify the aggregate amount of such Swingline Loans in which the Lenders will participate, and such Swingline Loans, if denominated in Foreign Currency, shall be converted to Dollars and shall bear interest at the Alternate Base Rate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Adjusted Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the applicable Swingline Lender, such Lender’s Applicable Adjusted Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its respective 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Revolving Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph (c), 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 Revolving Borrower (or other party on behalf of the Revolving 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 applicable, if and to the extent such payment is required to be refunded to the Revolving Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Revolving Borrower of any default in the payment thereofthereof and the Revolving Borrower shall reimburse each Lender for any amounts that may be due under Section 2.14, 2.16. 2.19 or any other term of this Agreement.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the each Swingline Lender agrees to make Swingline Loans to the Borrower Company and any Borrowing Subsidiary denominated in Euros from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate sum of the US Dollar Equivalents of the principal amount amounts of the outstanding Swingline Loans exceeding US$300,000,000, (ii) the sum of the US Dollar Equivalents of the principal amounts of outstanding Swingline Loans made by any Swingline Lender exceeding $10,000,000 such Swingline Lender’s Swingline Commitment, (iii) the total Multicurrency Tranche Revolving Credit Exposures exceeding the total Multicurrency Tranche Commitments, (iv) the Multicurrency Tranche Revolving Credit Exposure of any Lender exceeding such Lender’s Multicurrency Tranche Commitment or (iiv) the sum of the total Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding the total Commitments; provided that the no 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 Borrower Company and the Borrowing Subsidiaries may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the applicable Borrower shall notify the Administrative Agent and the applicable Swingline Lender of such request by telephone (confirmed by telecopyfacsimile or e-mail), not later than 12:00 noon, New York City timeLocal Time, on the day of a such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The applicable Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a credit to the general deposit an account of the such Borrower maintained with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) Administrative Agent by 3:00 p.m., New York City timeLocal Time, on the requested date of such Swingline Loan.
(c) The applicable Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 noon, New York City timeLocal Time, on any Business Day require the Multicurrency Tranche 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 the Swingline Loans in which the Multicurrency Tranche Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Multicurrency Tranche Lender, specifying in such notice such Lender’s Applicable Multicurrency Tranche Percentage of such Swingline Loan or Loans. Each Multicurrency Tranche Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided aboveabove (and in any event, if such notice is received by 12:00 noon, Local Time, on a Business Day, no later than 2:00 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 to the Administrative Agent, in Euros, for the account of the applicable Swingline Lender, such Lender’s Applicable Multicurrency Tranche Percentage of such Swingline Loan or Loans. Each Multicurrency Tranche 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 reduction or termination of the Multicurrency Tranche Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Multicurrency Tranche Lender further acknowledges and agrees that, subject in making any Swingline Loan, each Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representations and warranties of the Company deemed made pursuant to Section 2.164.02. Each Multicurrency Tranche 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 2.07 with respect to Loans made by such Lender (and Section 2.06 2.07 shall apply, mutatis mutandis, to the payment obligations of the Multicurrency Tranche Lenders), and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the Multicurrency Tranche Lenders. The Administrative Agent shall notify the applicable 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 Borrower (or other party on behalf of the Borrower) applicable 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Multicurrency Tranche 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 applicablethe case may be, if and to the extent such payment is required to be refunded to the a Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the any Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower Borrower, from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount sum of outstanding the total Swingline Loans Exposures exceeding $10,000,000 or the Swingline Commitment, (ii) the sum of the total Revolving Credit Exposures Exposure plus the Competitive Loan Exposure exceeding the total CommitmentsCommitments or (iii) unless otherwise agreed to in writing by the Swingline Lender, the aggregate amount of Swingline Loans and Revolving Loans made by the Swingline Lender exceeding the Swingline Lender’s Commitments hereunder; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Each Swingline Loan shall be made as part of a Borrowing consisting of Swingline Loans made by the Swingline Lender. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Each Swingline Loan at shall be in an integral multiple of $1,000,000; provided that a time when a Lender Swingline Loan may be in an aggregate amount that is a Defaulting Lender unless required to finance the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including reimbursement of an LC Disbursement as contemplated by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansSection 2.06(e).
(b) To request a Swingline LoanBorrowings, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not ) no later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline LoanBorrowing. Each such notice shall be irrevocable and shall specify the requested borrowing date (which shall be a Business Day) ), and the amount of the requested Swingline LoanBorrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit transfer of funds to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) Administrative Agent by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by By written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day Day, the Swingline Lender may require the Lenders to acquire participations on such Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice the percentage of the applicable Swingline Loans allocated to such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
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Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make (x) U.S. Swingline Loans to the Company from time to time during the Availability Period and (y) European Swingline Loans to the Company or the European Borrower from time to time during the Availability Period; provided that no such Swingline Loan under any Revolving Credit Facility shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 under such Revolving Credit Facility would exceed the Swingline Loan Sublimit of such Revolving Credit Facility or (ii) the sum of aggregate Revolving Credit Exposures under such Revolving Credit Facility would exceed the total Revolving Commitments under such Revolving Credit Exposures exceeding the total CommitmentsFacility; provided further 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 Borrower Company and/or the European Borrower, as applicable, may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to Immediately upon the contrary contained in this Section 2.04 or elsewhere in this Agreementmaking of a Swingline Loan, each Applicable Participant shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Loan in an amount equal to the product of such Defaulting LenderApplicable Participant’s or Defaulting Lenders’ Applicable Percentage times the amount of the outstanding such Swingline LoansLoan.
(b) To request a Swingline Loan, the Borrower Company and/or the European Borrower, as applicable, shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by telecopy), not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline LoanLoan Notice. Each Swingline Loan Notice shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 and (ii) the requested date (borrowing date, which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the applicable Borrower by means of a credit to the general deposit account of the such Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the applicable Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Applicable Participant make a Base Rate Loan to such Borrower in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding under the Revolving Credit Facility under which such Swingline Loan or was made. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. Each The Swingline Lender hereby absolutely and unconditionally agrees, upon receipt shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice as provided above, to pay to the Administrative Agent, . Each Applicable Participant shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Applicable Participants fund its risk participation in the relevant Swingline Loan and such Applicable Participant’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Applicable Participant fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Applicable Participant pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Applicable Participant (acting through the Administrative Agent), on demand, such Lenderamount 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 applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Applicable Participant pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Applicable Participant’s Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Applicable Percentage of such Swingline Loan or Loans. Participant (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Applicable Participant’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance whatsoevercircumstance, including the occurrence and continuance of a Default (A) any setoff, counterclaim, recoupment, defense or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 other right which such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 any such payment so remitted shall be repaid to the Swingline Lender Borrower or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower any other Person for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.reason whatsoever,
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Swingline Loans. (a) Subject to For ease of administration, Base Margin Loans may be made by the terms and conditions SwingLine Lender (in the aggregate, the "SWINGLINE LOANS") in accordance with the procedures set forth herein, in this Agreement for the Swingline Lender agrees making of loans and advances under the Revolving Credit. The unpaid principal balance of the SwingLine Loans shall not at any one time be in excess of the SwingLine Loan Ceiling (which SwingLine Loan Ceiling is subject to make Swingline Loans to the Borrower amendments from time to time during time, by reasonable advance written notice by the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total 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 Agent to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansLead Borrower).
(b) To request a Swingline Loan, The aggregate unpaid principal balance of SwingLine Loans shall bear interest as if the Borrower shall notify same were loans and advances under the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanRevolving Credit.
(c) The Swingline Lender may obligation to repay SwingLine Loans shall be evidenced by written notice given a Note (the "SWINGLINE NOTE") in the form of EXHIBIT 2.6(C), annexed hereto, executed by the Lead Borrower on behalf of itself and the other Borrowers and payable to the Administrative SwingLine Lender. Neither the original nor a copy of the SwingLine Note shall be required, HOWEVER, to establish or prove any Liability with respect to the SwingLine Loans. Upon the Lead Borrower being provided with an affidavit (which shall include an indemnity reasonably satisfactory to the Lead Borrower) from the Agent not later than 10:00 a.m.to the effect that the SwingLine Note has been lost, New York City timemutilated, or destroyed, the Lead Borrower shall on any Business Day require behalf of itself and the other Borrowers execute a replacement thereof and deliver such replacement to the SwingLine Lender.
(d) For all purposes of this Loan Agreement, the SwingLine Loans and the Lead Borrower's obligations to the SwingLine Lender constitute Revolving Credit Loans and are secured as "Liabilities".
(e) SwingLine Loans may be subject to periodic settlement with the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 13.2 of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline this 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofAgreement.
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Swingline Loans. (ai) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower may, from time to time, at its sole election and without prior notice to or consent by any Lender or Borrower, convert any request or deemed request by Borrower for a Revolving Loan that is a Base Rate Loan into a request for an advance made by, and for the account of, Swingline Lender in accordance with the terms of this Agreement (each such advance, a “Swingline Loan”). Each Swingline Loan shall be a Base Rate Loan, and shall be advanced by Swingline Lender in the same manner as Revolving Loans are advanced hereunder, in accordance with the provisions of Section 2.2(b). Swingline Lender shall have the right (but not the obligation) to advance Swingline Loans regardless of whether the conditions precedent set forth in Section 8.3 are then satisfied, including the existence of any Default or Event of Default either before or after giving effect to the making of such Swingline Loan; provided, that Swingline Lender shall not advance any Swingline Loan if the Swingline Loan Outstandings exceed the Swingline Loan Limit, either before or after giving effect to the making of any proposed Swingline Loan. If at any time during the Availability PeriodSwingline Loan Outstandings exceed the Swingline Loan Limit, then, on the next succeeding Business Day, Borrower shall repay Revolving Loans and/or Swingline Loans or cash collateralize Letter of Credit Liabilities in the manner specified in Section 2.5(e) or cancel outstanding Letters of Credit, or any combination of the foregoing, in an aggregate principal amount at equal to such excess.
(ii) Swingline Lender shall give Administrative Agent prompt notice of each Swingline Loan advanced by Swingline Lender. In the event that on any time Business Day Swingline Lender desires that all or any portion of the outstanding Swingline Loans should be reduced, in whole or in part, Swingline Lender shall notify Administrative Agent to that will not result effect and indicate the portion of the Swingline Loan to be so reduced. Administrative Agent agrees to transmit to Revolving Lenders the information contained in (i) each notice received by Administrative Agent from Swingline Lender regarding the aggregate principal amount reduction of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum and shall concurrently notify such Lenders of each such Lender’s Pro Rata Share of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required obligation to make a Swingline Revolving Loan to refinance an repay outstanding Swingline LoanLoans (or the applicable portion thereof). Within Each of the foregoing limits Revolving Lenders, other than any Revolving Lender that was a Non-Funding Revolving Lender at the time the applicable Swingline Loans were advanced, hereby unconditionally and subject irrevocably agrees to fund to the terms and conditions set forth hereinPayment Account, for the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the benefit of Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City noon (Chicago time, ) on the day Business Day immediately following the Business Day of such Lender’s receipt of such notice from Administrative Agent (provided that if any Revolving Lender shall receive such notice at or prior to 10:00 a.m. (Chicago time) on a Business Day, such funding shall be made by such Lender on such Business Day), such Lender’s Pro Rata Share of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date Revolving Loan (which Revolving Loan shall be a Business DayBase Rate Loan and shall be deemed to be requested by Borrower) and in the principal amount of such portion of the requested Swingline LoanLoan which is required to be paid to Swingline Lender under this Section 2.2(e). The Administrative Agent will promptly advise the Swingline Lender proceeds of any such notice received from Revolving Loans shall be immediately paid over to Administrative Agent for the Borrowerbenefit of Swingline Lender for application against then outstanding Swingline Loans. The For purposes of this clause (ii), Swingline Lender shall make each Swingline Loan available be conclusively entitled to assume that, at the Borrower by means of a credit to the general deposit account time of the Borrower with the Swingline Lender (or, in the case advance of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such any Swingline Loan, each Revolving Lender, other than any then existing Non-Funding Revolving Lender, will fund its Pro Rata Share of the Revolving Loans provided for in this clause (ii).
(ciii) The In the event that, at any time any Swingline Loans are outstanding, either (1) an Event of Default pursuant to either Section 9.1(f) or 9.1(g) has occurred or (2) the Revolving Loan Commitment has been suspended or terminated in accordance with the provisions of this Agreement, then in either case, each of the Revolving Lenders (other than Swingline Lender may and any Revolving Lender that was a Non-Funding Revolving Lender at the time the applicable Swingline Loans were advanced) shall be deemed to have irrevocably and immediately purchased and received from Swingline Lender, without recourse or warranty, an undivided interest and participation in the Swingline Loan in an amount equal to such Lender’s Revolving Loan Commitment Percentage (but recalculated to disregard any interest of any Non-Funding Revolving Lender in the Revolving Loans) multiplied by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion total amount of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay Any purchase obligation arising pursuant to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is immediately preceding sentence shall be absolute and unconditional and shall not be affected by any circumstance circumstances whatsoever. In the event that on any Business Day Swingline Lender desires to effect settlement of any such purchase, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph effect 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in indicate the payment thereof.amounts required by each Lender to effect such
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Swingline Loans. (a) Subject to the terms and conditions set forth herein, the each Swingline Lender agrees may in its sole discretion (and without any obligation to do so) make Swingline Loans in U.S. Dollars to the Borrower Company from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by such Swingline Lender exceeding $10,000,000 or such Swingline Lender’s Swingline Commitment, (ii) the sum Dollar Amount of such Swingline Lender’s Revolving Credit Exposure exceeding its Commitment (such Commitment to be calculated without giving effect to any assignment of any portion of the total initial Swingline Lender’s original Commitment as of the Effective Date, unless such Swingline Lender also assigns a proportional amount of its Swingline Commitment to the assignee or to another Lender with a Commitment at least equal to the Commitment amount being assigned), or (iii) the Dollar Amount of the Total Revolving Credit Exposures exceeding the total Commitments; 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 Borrower Company may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower Company shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender Lenders of any such notice received from the BorrowerCompany. The Each Swingline Lender shall make each its ratable portion of the requested Swingline Loan (such ratable portion to be calculated based upon such Swingline Lender’s Swingline Commitment in proportion to the total Swingline Commitments of all of the Swingline Lenders) available to the Borrower Company by means of a credit to the general deposit an account of the Borrower Company with the Swingline Lender Administrative Agent designated for 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(e2.06(e), by remittance to the relevant such Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The failure of any Swingline Lender to make its ratable portion of a Swingline Loan shall not relieve any other Swingline Lender of its obligation hereunder to make its ratable portion of such Swingline Loan on the date of such Swingline Loan, but no Swingline Lender shall be responsible for the failure of any other Swingline Lender to make the ratable portion of a Swingline Loan to be made by such other Swingline Lender on the date of any Swingline Loan.
(d) Any Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice as provided abovefrom the Administrative Agent (and in any event, if such notice is received by 12:00 Noon, New York City time, on a Business Day, then no later than 5:00 p.m., New York City time, on such Business Day, and if received after 12:00 Noon, New York City time, on a Business Day, then no later than 10:00 a.m., New York City Time, on the immediately succeeding Business Day), to pay to the Administrative Agent, for the account of the such Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the such Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower 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 to the Administrative Agent and not to the such Swingline Lender. Any amounts received by the a Swingline Lender from the Borrower Company (or other party on behalf of the BorrowerCompany) 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 applicable, if and to the extent such payment is required to be refunded to the Borrower Company for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Company of any default in the payment thereof.
Appears in 1 contract
Samples: Credit Agreement (Cabot Corp)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make (x) U.S. Swingline Loans to the Company from time to time during the Availability Period and (y) European Swingline Loans to the Company or the European Borrower from time to time during the Availability Period; provided that no such Swingline Loan under any Revolving Credit Facility shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 under such Revolving Credit Facility would exceed the Swingline Loan Sublimit of such Revolving Credit Facility or (ii) the sum of aggregate Revolving Credit Exposures under such Revolving Credit Facility would exceed the total Revolving Commitments under such Revolving Credit Exposures exceeding the total CommitmentsFacility; provided further 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 Borrower Company and/or the European Borrower, as applicable, may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to Immediately upon the contrary contained in this Section 2.04 or elsewhere in this Agreementmaking of a Swingline Loan, each Applicable Participant shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Loan in an amount equal to the product of such Defaulting LenderApplicable Participant’s or Defaulting Lenders’ Applicable Percentage times the amount of the outstanding such Swingline LoansLoan.
(b) To request a Swingline Loan, the Borrower Company and/or the European Borrower, as applicable, shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by telecopy), not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline LoanLoan Notice. Each Swingline Loan Notice shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Administrative Agent not later than
1: 00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 and (ii) the requested date (borrowing date, which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the applicable Borrower by means of a credit to the general deposit account of the such Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the applicable Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Applicable Participant make a Base Rate Loan to such Borrower in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding under the Revolving Credit Facility under which such Swingline Loan or was made. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. Each The Swingline Lender hereby absolutely and unconditionally agrees, upon receipt shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice as provided above, to pay to the Administrative Agent, . Each Applicable Participant shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Applicable Participants fund its risk participation in the relevant Swingline Loan and such Applicable Participant’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Applicable Participant fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Applicable Participant pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Applicable Participant (acting through the Administrative Agent), on demand, such Lenderamount 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 applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Applicable Participant pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Applicable Participant’s Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Applicable Percentage of such Swingline Loan or Loans. Participant (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Applicable Participant’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, any Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or reduction (C) any other occurrence, event or termination condition, whether or not similar to any of the Commitmentsforegoing; provided, and however, that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, Applicable Participant’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 2.164.02. Each No such funding of risk participations shall relieve or otherwise impair the obligation of either Borrower to repay Swingline Loans to such Borrower, together with interest as provided herein.
(i) At any time after any Applicable Participant has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender shall comply with receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Applicable Participant its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Applicable Participant shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Applicable Participants under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing each Borrower of any participations in any for interest on the Swingline Loans to such Borrower. Until each Applicable Participant funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Applicable Participant’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be solely for the account of the Swingline Lender.
(f) Each Borrower shall make all payments of principal and interest in respect of the Swingline Loans made to the Administrative Agent and not such Borrower directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth hereinof this Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, Commitment Period 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 Applicable Percentage of the outstanding amount of Loans and LC Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Commitment; provided that after giving effect to any amount requested, (i) the aggregate principal amount of all outstanding Swingline Loans exceeding $10,000,000 or does not exceed the Aggregate Commitments, and (ii) the sum aggregate outstanding amount of the total Revolving Credit Exposures exceeding the total 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 hereinLoans of any Lender, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline plus such Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding amount of all LC Obligations, plus such Lender’s Applicable Percentage of the outstanding amount of all Swingline LoansLoans does not exceed such Lender’s Commitment; provided, further, that the Swingline Lender will not make a Swingline Loan from and after the date which is one (1) day after it has received written notice from the Borrower or any Lender that one or more of the applicable conditions to Credit Extensions specified in Section 4.02 is not then satisfied until such conditions are satisfied or waived in accordance with the provisions of this Agreement (and the Swingline Lender shall be entitled to conclusively rely on any such notice and shall have no obligation to independently investigate the accuracy of such notice and shall have no liability to the Borrower in respect thereof if such notice proves to be inaccurate). The Borrower will have the option to choose whether the Swingline Loan is (A) a Daily Simple SOFR Loan or (B) a Daily Floating Term SOFR Loan. The aggregate amount of Swingline Loans in any Borrowing shall not be subject to a minimum amount or increment. Each Swingline Loan accruing interest (A) at Adjusted Daily Simple SOFR, shall continue to accrue interest as a Daily Simple SOFR Loan and (B) at the Daily Floating Term SOFR, shall continue to accrue interest as a Daily Floating Term SOFR Loan at the end of each Interest Period applicable thereto unless and until (x) the Borrower has given notice of Conversion to a Base Rate Loan in accordance with Section 2.04 or (y) such Swingline Loan is refunded pursuant to Section 2.02(b).
(b) To request Swingline Loans shall be refunded by the Lenders on demand by the Swingline Lender. Such refundings shall be made by each Lender in accordance with its Applicable Percentage and shall thereafter be reflected as Loans of the Lenders on the books and records of the Administrative Agent. Each Lender shall fund its Applicable Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but in no event later than 1:00 p.m. on the next succeeding Business Day after such demand is made. No Lender’s obligation to fund its Applicable Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Applicable Percentage of a Swingline Loan, the Borrower nor shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of any Lender’s Applicable Percentage be increased as a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender result of any such notice received from the Borrower. The Swingline failure of any other Lender shall make each Swingline Loan available to the Borrower by means fund its Applicable Percentage of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Borrower shall pay to the Swingline Lender may the amount of each Swingline Loan (unless such Swingline Loan is fully refunded by written notice given the Lenders pursuant to Section 2.02(b)): on the earliest to occur of (i) demand by the Swingline Lender and (ii) the Maturity Date. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their Applicable Percentages (unless the amounts so recovered by or on behalf of the Borrower pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Administrative Agent has received notice in the manner required pursuant to Section 10.02 and which such Event of Default has not later than 10:00 a.m.been waived by the Majority Lenders or the Lenders, New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. applicable).
(d) Each Lender acknowledges and agrees that its obligation to acquire participations in refund Swingline Loans pursuant to in accordance with the terms of this paragraph Section 2.02 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination including, without limitation, non-satisfaction of the Commitmentsconditions set forth in Article IV. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.02, one of the events described in clause (i)(i), (i)(ii) or (i)(iii) of Section 8.01 shall have occurred, each Lender will, on the date the applicable Revolving Credit Loan would have been made, purchase an undivided, irrevocable and unconditional participating interest in the Swingline Loans to be refunded in an amount equal to its Applicable Percentage of the aggregate amount of such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16Swingline Loans. Each Lender shall comply with its obligation under this paragraph by wire will immediately transfer of to the Swingline Lender, in 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 amount of the Lenders)its participation, and the Administrative Agent shall promptly pay to upon receipt thereof, the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the amounts so date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received by it from any Lender such Lender’s participating interest in a Swingline Loan, the LendersSwingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded). The Administrative Agent Notwithstanding the foregoing provisions of this Section 2.02(d), a Lender shall notify the Borrower of any participations in any have no obligation to refund a Swingline Loan acquired pursuant to this paragraphSection 2.02(b) if (i) a Default shall exist at the time such refunding is requested by the Swingline Lender, (ii) such Default had occurred and thereafter payments in respect of was continuing at the time such Swingline Loan shall be was made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from and (iii) such Lender notified the Borrower Swingline Lender in writing, not less than one (or other party on behalf of 1) Business Day prior to the Borrower) in respect of a Swingline Loan after receipt making 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 Lenders Swingline Loan, that shall have such Default has occurred and is continuing and that such Lender will not refund Swingline Loans made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any while 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 Default is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofcontinuing.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions hereof and relying upon the representations and warranties set forth herein, the Swingline Lender agrees to may, at its option, cancelable at any time for any reason whatsoever, make Swingline Loans denominated in U.S. Dollars to the a Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 25,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total 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 Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower Borrowers to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such obligations under Section 2.04(c) to make Revolving Loans to repay outstanding Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline LoanLoan denominated in U.S. Dollars, the applicable Borrower shall notify the deliver by email to Administrative Agent a duly completed request therefor substantially in the form of such request by telephone (confirmed by telecopy)Exhibit E-2, not later than 12:00 noon11:00 a.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the such Borrower. The Swingline Lender shall make each Swingline Loan available to the such Borrower by means of a credit to the general deposit account of the such Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.05(d), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may may, at its option, exercisable at any time for any reason whatsoever, by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion demand repayment of the Swingline Loans outstandingand each Lender shall make a Revolving Loan in an amount equal to such Lender’s Applicable Percentage of the aggregate principal amount of the outstanding Swingline Loan or Loan, plus, if Swingline Lender so requests, accrued interest thereon, provided that no Lender shall be obligated in any event to make Revolving Loans to the extent that such Lender’s Revolving Credit Exposure would exceed such Lender’s Commitment. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participateparticipate and, if applicable, accrued interest thereon. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay fund Revolving Loans to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or LoansLoans and, if applicable, accrued interest thereon. Revolving Loans made pursuant to the foregoing provisions of this paragraph shall be ABR Loans and shall be deemed to have been properly requested in accordance with Section 2.03 without regard to any of the requirements of that provision. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline fund such Revolving 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 Event of Default, or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the applicable Borrower of any participations in any Swingline Loan acquired Revolving Loans made 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 a Borrower (or other party on behalf of the a Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein Revolving Loan made to repay any Swingline Loan 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 Lenders that shall have made their payments such Revolving Loans 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 a Borrower for any reason. The purchase making of participations in a Revolving Loans to repay any Swingline Loan pursuant to this paragraph shall not relieve the any Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the any Borrower from time to time during the Availability PeriodPeriod in Dollars, in an aggregate principal amount at any time outstanding that will not result in (ix) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 the Swingline Loan Sublimit or (iiy) the sum aggregate principal amount of the total Revolving Credit Exposures exceeding the total Revolving Commitments; provided that (I) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and (II) the Swingline Lender shall not be required to make any Swingline Loan to the extent the aggregate principal amount of the Revolving Loans made by the Lender acting as Swingline Lender that are then outstanding, when aggregated with the aggregate principal amount of Swingline Loans, would exceed the amount of such Lender’s Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower Agent shall notify the Administrative Agent of such request by telephone (confirmed by telecopytelecopy or transmission by electronic communication), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be in the form attached hereto as Exhibit B-5 and shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice of a request for a Swingline Loan Borrowing received from the applicable Borrower. The Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a credit to the general deposit account of the such Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank or, to the extent that the Applicable Participants have made payments pursuant to Section 2.05(e) to reimburse the applicable Issuing Bank, to such Applicable Participants and such Issuing Bank as their interests may appear) 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 10:00 a.m., New York City time, on any Business Day require the Lenders Applicable Participants to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such Each such notice shall specify the aggregate amount of Swingline Loans in which Lenders the Applicable Participants will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each LenderApplicable Participant, specifying in such notice such LenderApplicable Participant’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender Applicable Participant 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 LenderApplicable Participant’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender Applicable Participant 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender Applicable Participant 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 Applicable Participant (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the LendersApplicable Participants), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the LendersApplicable Participants. The Administrative Agent shall notify the 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 applicable Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders Applicable Participants 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 a Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the any Borrower of any default in the payment thereof.
(d) Any Swingline Lender may be replaced at any time by written agreement among the Borrower Agent, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 the lesser of (A) the Swingline Sublimit and (B) the unutilized Revolving Commitment of the Swingline Lender or (ii) the sum of the total Revolving Credit Exposures exceeding the total Revolving 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreementforegoing, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a to the Borrower if any Lender is at that time a Defaulting Lender Lender, unless the Swingline Lender has entered into arrangements arrangements, including the delivery of cash collateral, satisfactory to it and the Swingline Lender (in its sole discretion) with the Borrower or such Lender to eliminate the Swingline Lender’s risk actual or potential Fronting Exposure (after giving effect to Section 2.22(a)(iv)) with respect to the Defaulting Lender’s Lender arising from either the Swingline Loan then proposed to be made or Defaulting Lenders’ participation that Swingline Loan and all other Swingline Exposure as to which the Swingline Lender has actual or potential Fronting Exposure, as it may elect in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loansits sole discretion.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopyfacsimile), not later than 12:00 noon1:00 p.m. Charlotte, New York City North Carolina time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and irrevocable, shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline LoanLoan and shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of a written Swingline Borrowing Request in substantially the form of Exhibit B-2 attached hereto and signed by the Borrower. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City Charlotte, North Carolina 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 10:00 a.m., New York City Charlotte, North Carolina time, on any Business Day require the Lenders then holding a Revolving Commitment 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each such Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender then holding a Revolving Commitment 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 Lender then holding a Revolving Commitment 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 (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence and or continuance of a Default any Default, or reduction (iii) the failure of any conditions set forth in Section 4.2 or termination of the Commitments, and that each such payment shall elsewhere herein to be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16satisfied. Each Lender then holding a Revolving Commitment shall comply with its obligation under this paragraph Section 2.5(c) by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.7 with respect to Loans made by such Lender (and Section 2.06 2.7 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphSection 2.5(c), 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; Agent and any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Samples: Credit Agreement (Symantec Corp)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make Swingline Loans in Dollars to the Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or would exceed the Swingline Loan Sublimit, (ii) the sum of aggregate Revolving Credit Exposures would exceed the total Revolving Commitments or (iii) such Swingline Lender’s Credit Exposures exceeding the total CommitmentsExposure would exceed its Revolving Commitment; provided further 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to Immediately upon the contrary contained in this Section 2.04 or elsewhere in this Agreementmaking of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Loan in an amount equal to the product of such Defaulting Revolving Lender’s or Defaulting Lenders’ Applicable Percentage times the amount of the outstanding such Swingline LoansLoan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by telecopy), not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline Loan. Each Loan Notice, and, in each case, such notice shall be irrevocable irrevocable. Each such Swingline Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested date (borrowing date, which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, p.m. on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the Borrower with a copy of the applicable Borrowing Request promptly after delivering such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, . Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and such Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the 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(c) by the time specified in Section 2.04(c)(i), 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 applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or reduction (C) any other occurrence, event or termination condition, whether or not similar to any of the Commitmentsforegoing; provided, and however, that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 2.164.02. Each No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender shall comply with has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Revolving Lender shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent account of the Swingline Lender.
(f) The Borrower shall make all payments of principal and not interest in respect of its Swingline Loans directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, including without limitation Section 2.16, the Swingline Lender agrees to make Swingline Loans denominated in Dollars to the Borrower from time to time Borrower, during the Availability Periodperiod 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 lesser (such lesser amount being referred to as the “Swingline Availability”) of (i) $35,000,000, as such amount may be reduced from time to time in accordance with the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or terms hereof and (ii) the sum Revolving Commitment of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make in its capacity as a Revolving Lender minus the aggregate outstanding principal amount of Revolving Loans of the Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth hereinLender in its capacity as a Revolving Lender; provided, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreementhowever, the Swingline Lender shall not be obligated to make any Swingline Loan Loans if the aggregate principal amount at a such time when a Lender is a Defaulting Lender unless the of its outstanding Revolving Loans and Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate Loans together with the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Revolving Commitment Percentage of the Stated Amount of all issued and outstanding Letters of Credit exceeds the then Commitment of the Swingline Loans.
(b) To request a Lender. If at any time the aggregate principal amount of the Swingline LoanLoans outstanding at such time exceeds the Swingline Availability at such time, the Borrower shall notify immediately pay the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Lender the amount of such Swingline Loan or Loansexcess. Each Lender acknowledges Subject to the terms and agrees that its obligation to acquire participations in conditions of this Agreement, the Borrower may borrow, repay and reborrow 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lendershereunder. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the Borrower) in respect borrowing of a Swingline Loan after receipt by the Swingline Lender shall not constitute usage of any Revolving Lender’s Revolving Commitment for purposes of calculation 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 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereoffee payable under Section 3.5(b).
Appears in 1 contract
Samples: Credit Agreement (LGI Homes, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the any Swingline Lender agrees to may in its sole discretion, in reliance upon the agreements of the Lenders set forth in this Section 2.03, make loans (each such loan, a “Swingline Loans Loan”), denominated in Dollars, to the Borrower Borrowers from time to time on any Business Day during the Availability Period; provided that after giving effect to any Swingline Loan, in an aggregate principal amount at any time outstanding that will not result in (i) such Swingline Loan, when aggregated with the Revolving Credit Exposure of the Lender acting as such Swingline Lender, shall not exceed such Lender’s Commitment, (ii) the aggregate principal amount of all outstanding Swingline Loans exceeding and all outstanding RCF Swingline Loans shall not exceed $10,000,000 or 50,000,000 and (iiiii) the sum of the total Total Revolving Credit Exposures exceeding Exposure shall not exceed the total Aggregate Commitments; and provided further that the Swingline Lender a Borrower shall not be required to make a use the proceeds of any Swingline Loan to refinance an any outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything Subject to Section 2.03(c)(ii), each Swingline Loan shall bear interest at a rate that is mutually agreeable to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the applicable Swingline Lender shall not be obligated to make any and the applicable Borrower at the time such Borrower delivers a Swingline Borrowing Request for a Swingline Loan at a time when a Lender is a Defaulting Lender unless the to such Swingline Lender has entered into arrangements satisfactory to it (the “Agreed Swingline Rate”). Immediately upon the making of a Swingline Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Borrower to eliminate the applicable Swingline Lender’s Lender a risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Loan in an amount equal to the product of such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage multiplied by the amount of the outstanding such Swingline LoansLoan.
(b) To request a Swingline LoanBorrowing, the a Borrower shall notify the applicable Swingline Lender and the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon2:00 p.m., New York City time, on the day of a proposed Swingline LoanBorrowing. Each such notice telephonic Swingline Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or by facsimile transmission or electronic transmission (in .pdf format) to the applicable Swingline Lender and the Administrative Agent of a written Swingline Borrowing Request signed by the Borrower requesting the Swingline Borrowing. Each such telephonic and written Swingline Borrowing Request shall specify (i) the requested date of such Swingline Borrowing (which shall be a Business Day) and (ii) the amount of the requested Swingline LoanBorrowing, which shall be an integral multiple of $500,000 and not less than $1,000,000. The Administrative Agent will promptly advise Upon receiving a Swingline Borrowing Request, the applicable Swingline Lender of any may, in its sole discretion, either reject such notice received from the Borrower. The request or agree to make such Swingline Loan, it being understood that no Swingline Lender shall be under any obligation to make each any Swingline Loan to any Borrower at any time. If a Swingline Lender agrees to make a Swingline Loan to any Borrower, it shall make such Swingline Loan available to the such Borrower by means of a credit (if JPMorgan is the applicable Swingline Lender) to the general deposit account of the such Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) Administrative Agent by 3:00 p.m., New York City time, on the requested date of such Swingline LoanBorrowing.
(ci) The Any Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the Borrowers (which hereby irrevocably authorize such Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on their behalf), that each Lender make an ABR Loan in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of Swingline Loans made by such Swingline Loan or LoansLender then outstanding. Any such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 (without regard to the minimum and multiples specified in Section 2.01 for the principal amount of ABR Borrowings) and the conditions set forth in Section 5.02. The applicable Swingline Lender shall furnish the Borrowers with a copy of the applicable Borrowing Request promptly after delivering such notice to the Administrative Agent. Each Lender hereby absolutely and unconditionally agrees, upon receipt shall make an amount equal to its Applicable Percentage of notice as provided above, to pay the amount specified in such Borrowing Request available to the Administrative Agent, for the account of the applicable Swingline Lender, by wire transfer of immediately available funds, by 1:00 p.m., New York City time, on the day specified in such Borrowing Request, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, whereupon, subject to Section 2.03(c)(ii), each Lender that so makes funds available shall be deemed to have made an ABR Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by a Borrowing of Revolving Credit Loans in accordance with Section 2.03(c)(i), the request for ABR Loans submitted by a Swingline Lender as set forth in Section 2.03(c)(i) shall be deemed to be a request by such Swingline Lender that each of the Lenders fund its risk participation in the relevant Swingline Loan and each such Lender’s payment to the Administrative Agent for the account of such Swingline Lender pursuant to Section 2.03(c)(i) shall be deemed payment in respect of such participation. From and after the date when the Lenders are required to make funds available to the Administrative Agent for the account of the applicable Swingline Lender for the purpose of funding the Lenders’ risk participations in any Swingline Loans made by such Swingline Lender, such Swingline Loans shall bear interest at the rate applicable to ABR Revolving Credit Borrowings as provided in Section 2.10(a) rather than the applicable Agreed Swingline Rate.
(iii) If any Lender fails to make available to the Administrative Agent for the account of any Swingline Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(i), then such Swingline Lender shall be entitled to recover from such 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 such Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate determined by such Swingline Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such Swingline Lender in connection with the foregoing. If such Lender pays such amount, the amount so paid (excluding the interest and fees referred to in the immediately preceding sentence) shall constitute such Lender’s Applicable Percentage Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the applicable Swingline Loan or Loans. Lender submitted to any Lender (through the Administrative Agent), with respect to any amounts owing under this Section 2.03(c)(iii) shall be conclusive absent manifest error.
(iv) Each Lender acknowledges and agrees that its Lender’s obligation to acquire make Revolving Credit Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.03(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the applicable Swingline Lender, the applicable Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or reduction (C) any other occurrence, event or termination condition, whether or not similar to any of the Commitments, and foregoing; provided that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, Lender’s obligation to make Revolving Credit Loans (but not fund risk participations) pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 2.165.02. Each Funding of risk participations in accordance with this Section shall not relieve or otherwise impair the obligation of any Borrower to repay Swingline Loans made to it, together with interest as provided herein.
(i) At any time after any Lender shall comply with has purchased and funded a risk participation in a Swingline Loan, if the applicable Swingline Lender receives any payment on account of such Swingline Loan, such Swingline Lender will distribute to such Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by such Swingline Lender.
(ii) If any payment received by the applicable Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by such Swingline Lender under any of the circumstances described in Section 2.06 with respect 11.20 (including pursuant to any settlement entered into by such Swingline Lender in its discretion), each Lender shall pay to such Swingline Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Effective Rate. The Administrative Agent will make such demand upon the request of the applicable Swingline Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Each Swingline Lender shall be responsible for invoicing the applicable Borrower for interest on the Swingline Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lendersto such Borrower. The Administrative Agent shall notify the Borrower of any participations in any Swingline Until each Lender funds its ABR Loan acquired or risk participation pursuant to this paragraphSection 2.03 with respect to any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent and not to account of the applicable Swingline Lender. Any amounts received by the Swingline Lender from the .
(f) Each Borrower (or other party on behalf shall make all payments of the Borrower) principal and interest in respect of a each Swingline Loan after receipt made to it by the any Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted directly to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofaccordance with Section 2.07.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Weatherford International PLC)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the theeach Swingline Lender agrees may, in its sole discretion,agrees, severally, to make Swingline Loans in U.S. Dollars to the Borrower from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans Exposure exceeding $10,000,000 or the Swingline Commitment or, (ii) the sum Revolving Facility Exposure of any Swingline Lender exceeding such Swingline Lender’s respective Revolving Facility Commitment or (iii) the Revolving Facility Exposure plus the face amount of letters of credit issued under Section 6.01(s) exceeding the total Revolving Credit Exposures exceeding the total Facility Commitments; provided provided, that the Swingline Lender LenderLenders shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanBorrowing and, to the extent that any HPS Lender is a Swingline Lender, such Swingline Lender shall not be required to fund any Swingline Loans until receipt of corresponding loans under the Natixis Swingline Agreement. Each Swingline Borrowing shall be in an amount that is an integral multiple of an amount to be agreed between the Borrower and Swingline Lenderthe Borrowing Multiple, and not less than an amount to be agreed between the Borrower and Swingline Lenderthe Borrowing Minimum. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to To the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it extent that HPS and the Borrower HPS Lenders agree to eliminate the act as Swingline Lender’s risk Lenders, it is understood and agreed they may satisfy their obligations hereunder with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in making of Swingline Loans by causing a Third Party Swingline Lender to make such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansLoan.
(b) To request a Swingline LoanBorrowing, the Borrower shall notify the Administrative Agent and the Swingline LenderLenders of such request in writing (which may be by telephone (confirmed by telecopy)electronic mail) in the form of a Swingline Borrowing Request, not later than 12:00 noon11:0010:00 a.m., New York City timeLocal Time, on the day of a proposed Swingline LoanBorrowing. Each such notice and Swingline Borrowing Request shall be irrevocable and shall specify (i) the requested date (which shall be a Business Day) and (ii) the amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerBorrowing. The Swingline Lender LenderLenders shall consult with the Administrative Agent as to whether the making of the Swingline Loan is in accordance with the terms of this Agreement prior to the Swingline LenderLenders funding such Swingline Loan. Upon receipt of notice a proposed Swingline Borrowing from Borrower, the Swingline Lenders shall promptly deliver notice of a proposed borrowing to Natixis no later than the deadline set forth in the Natixis Swingline Agreement for requesting a corresponding loan. The Swingline LenderLenders shall make each Swingline Loan to be made by itthem hereunder in accordance with Section 2.02(a) on the proposed date thereof by wire transfer of immediately available funds by 3:004:00 p.m., Local Time, to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan Borrowing made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e), by remittance to the relevant applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan).
(c) The Swingline Lender LenderLenders shall have the right to demand repayment by the Borrower of any Swingline Loan, in whole or in part, on the 15th day after borrowing of any Swingline Loan upon giving written notice to the Borrower and the Administrative Agent before 12:00 p.m. (New York City time) no later than the 5th day after borrowing of any Swingline Loan. With respect to any Swingline Loans which have not been repaid by the Borrower upon demand pursuant to the foregoing sentence or voluntarily prepaid by the Borrower pursuant to Section 2.11(a), the Swingline Lenders may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 p.m., New York City timeLocal Time, on any in itstheir sole discretion, four Business Day Days before the date of the proposed participations, require the Revolving Facility Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans outstandingmade by it. Such notice shall specify the aggregate amount of such Swingline Loans in which the Revolving Facility Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each such Revolving Facility Lender, specifying in such notice such Revolving Facility Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, Agent for the account of the Swingline LenderLenderLenders, such Revolving Facility Lender’s Applicable Percentage of such Swingline Loan or LoansLoans (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swingline Loan). Each Revolving Facility Lender acknowledges and agrees that its respective 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Revolving Facility 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 Facility Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Facility Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender LenderLenders the amounts so received by it from the Revolving Facility Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline LenderLenderLenders. Any amounts received by the Swingline Lender LenderLenders from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender LenderLenders 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 Facility Lenders that shall have made their payments pursuant to this paragraph and to the Swingline LenderLenderLenders, as their interests may appear; provided provided, that any such payment so remitted shall be repaid to the Swingline Lender LenderLenders or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) The Swingline LenderLenders may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline LenderLender(s) and the successor Swingline LenderLender(s). The Administrative Agent shall notify the Lenders of any such replacement of thea Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Swingline LenderLender(s). From and after the effective date of any such replacement, (i) the successor Swingline LenderLender(s) shall have all the rights and obligations of the replaced Swingline LenderLender(s) under this Agreement with respect to Swingline Loans to be extended thereafter and (ii) references herein to the term “Swingline Lender” or “Swingline Lenders” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of such Swingline Loans under this Agreement with respect to Swingline Loans extended by it prior to such replacement but shall not be required to extend any additional Swingline Loans.
(e) From time to time, HPS (in its sole discretion) may agree to act as the Swingline Lender pursuant to a written agreement among the Borrower, the Administrative Agent and HPSPursuant to the First Amendment, certain HPS Lenders have agreed to act as Swingline Lenders. HPS and the HPS Lenders agree to use commercially reasonable efforts to keep in effect the Natixis Swingline Agreement (it being agreed that in no event shall HPS or the HPS Lenders be required to pay any incremental fees, costs or expenses greater than those of a de minimis nature, unless the Borrower shall agree to and promptly reimburse such fees, costs and expenses in full) and agree to act as Swingline Lenders if the Natixis Swingline Agreement remains in effect, provided that notwithstanding such written agreement or anything herein to contrary, if at any time HPS isor the HPS Lenders are unable act as the Swingline LenderLenders or cannot act as thea Swingline Lender without undue burden or without incurring incremental fees, costs or expenses of a non-de minimis nature then HPS and the HPS Lenders, may, upon written notice (“Swingline Resignation Notice”) to the Borrower and Administrative Agent, immediately resign from its roletheir role(s) as Swingline LenderLenders. After any potential resignation of HPS and the HPS Lenders hereunder, HPS and the HPS Lenders shall remain a party hereto and shall continue to have all the rights and obligations of such Swingline Loans under this Agreement with respect to Swingline Loans extended by itthem prior to such resignation but shall not be required to extend any additional Swingline Loans. Such Swingline Resignation Notice shall also serve as a notice to the Revolving Facility Lenders pursuant to Section 2.04(c) and the Revolving Facility Lenders hereby agree to acquire participations in such Swingline Loans in accordance with the provisions of Section 2.04(c).
(f) Reference is made to (i) that certain Swing Line Loan Reimbursement Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Natixis Swingline Agreement”) dated as of the First Amendment Effective Date among the Obligors, HPS and Natixis and (ii) the Natixis Fee Letter (together with the Natixis Swingline Agreement, the “Natixis Swingline Documents”). The Borrower acknowledges that it has read the Natixis Swingline Documents and approves of HPS and the Obligors entering into the same. Notwithstanding any other provision of this Agreement, the Obligors as Swingline Lenders hereunder shall have no obligation to lend, or cause Natixis to lend, swingline loans other than in accordance with the terms of, and subject to the terms and conditions of, the Natixis Swingline Documents and the Borrower shall have no right to request that HPS or the Obligors lend or cause the lending of swingline loans other than in accordance with, and subject to all terms and conditions of, the Natixis Swingline Documents. Borrower will supply HPS with such documents as HPS may reasonably request in order to comply with or keep in effect the Natixis Swingline Documents. Borrower shall promptly reimburse HPS for any and all fees, expenses and other amounts payable by HPS or any Obligor under the Natixis Swingline Documents including, without limitation, the Swing Line Loan Upfront Fees (as defined therein), any increased costs as provided in Section 5 of the Natixis Swingline Agreement, any Taxes as provided in the Section 6 of the Natixis Swingline Agreement and any indemnification and breakage obligations as provided in Section 8 of the Natixis Swingline Agreement (but excluding Swingline Loan Unused Commitment Fees (as defined therein), and the interest rate payable pursuant to Section 2(b) of the Natixis Swingline Agreement, solely to the extent such fees and amounts are duplicative of, and in each case not in excess of, the corresponding fees and amounts the Borrower would otherwise be required to pay hereunder in connection with the Commitment Fee pursuant to Section 2.12(a) and interest payable pursuant to Section 2.13(a) in respect of Swingline Loans respectively). In the event of any conflict between this Section 2.04(f) of this Agreement and any other provision of this Agreement, this Section 2.04(f) shall govern and control.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the Swingline Lender agrees may elect in its sole and absolute discretion, in reliance upon the agreements of the other Lenders set forth in this Section 2.5, to make swingline loans (each such loan, a “Swingline Loans Loan”) to the Borrower from time to time on any Business Day during the Availability Period, Revolving Commitment Period 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 (i) after giving effect to any Swingline Loan, (A) the Total Revolving Extensions of Credit shall not exceed the Total Revolving Commitments, and (B) each Lender’s aggregate principal amount Revolving Extensions of outstanding Swingline Loans exceeding $10,000,000 or Credit shall not exceed such Lender’s Commitment, and (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender Borrower shall not be required to make a 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 hereinhereof, the Borrower may borrowrequest Swingline Loans under this Section 2.5, prepay Swingline Loans under Section 2.7, and request to reborrow under this Section 2.5. Each Swingline LoansLoan shall be an ABR Loan. Notwithstanding anything Immediately upon the making of a Swingline Loan, each Lender shall 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 such Lender’s Percentage multiplied by the amount of such Swingline Loan. If at any time the Borrower has requested a Swingline Loan hereunder and any Lender is at such time an Impacted Lender hereunder, then prior to the contrary contained in this Section 2.04 or elsewhere in this Agreementmaking of any such Swingline Loan, the Swingline Lender shall not be obligated may, as a condition to make any making the requested Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered Loan, enter into arrangements satisfactory to it the Swingline Lender in its sole and absolute discretion with the Borrower or such Impacted Lender to eliminate the Swingline Lender’s risk with respect to the Defaulting such Impacted Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Samples: Credit Agreement (National Financial Partners Corp)
Swingline Loans. (a) Subject to For ease of administration, Base Margin Loans may be made by the terms and conditions SwingLine Lender (in the aggregate, the "SWINGLINE LOANS") in accordance with the procedures set forth herein, in this Agreement for the Swingline Lender agrees to make Swingline making of loans and advances under the Revolving Credit. The aggregate unpaid principal balance of the SwingLine Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount shall not at any one time outstanding that will not result be in excess of the lesser of (i) as to all Borrowers, the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 SwingLine Loan Ceiling, or (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline as to any Division, DSW/Shonac Availability, Filene's Availability, or VC Availability, as applicable. The SwingLine Lender shall not make a SwingLine Loan if the SwingLine Lender has received notice from the Administrative Agent that the Administrative Agent has suspended, or the Administrative Agent has received written notice from the SuperMajority Lenders instructing the Administrative Agent to suspend, the Revolving Credit in accordance with the terms hereof. Absent such notification, the SwingLine Lender (x) shall not otherwise be required to determine whether the conditions precedent to such SwingLine Loan have been satisfied or whether the requested borrowing would cause Availability, DSW/Shonac Availability, Filene's Availability or VC Availability, as applicable, to be exceeded, and (y) shall be entitled in all cases to have each Revolving Credit Lender make a Swingline Loan to refinance an outstanding Swingline Loan. Within Revolving Credit Loans in settlement of such SwingLine Loans in accordance with the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this provisions of Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans12.2 hereof.
(b) To request a Swingline Loan, The aggregate unpaid principal balance of SwingLine Loans shall bear interest at the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice rate applicable to Base Margin Loans and shall be irrevocable and shall specify repayable as a loan under the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanRevolving Credit.
(c) The Swingline Lender may Borrowers' obligation to repay SwingLine Loans shall be evidenced by written notice given a Note in the form of EXHIBIT 2.8(C), annexed hereto, executed by the Borrowers, and payable to the Administrative Agent not later than 10:00 a.m.SwingLine Lender. Neither the original nor a copy of that Note shall be required, New York City timehowever, on to establish or prove any Business Day require Liability. Upon receipt of an affidavit of an officer of, and a customary indemnity from, a SwingLine Lender as to the Lenders to acquire participations on such Business Day in all loss, theft, destruction or a portion mutilation of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeSwingLine Note, the Administrative Agent Borrowers will give notice issue in lieu thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, replacement SwingLine Note in the same manner principal amount thereof and of like tenor.
(d) For all purposes of this Loan Agreement, the SwingLine Loans and the Borrowers' obligations to the SwingLine Lender constitute Revolving Credit Loans and are secured as "Liabilities".
(e) SwingLine Loans shall be subject to periodic settlement with the Revolving Credit Lenders 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofAgreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Value City Department Stores Inc /Oh)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinof this Agreement, in addition to the Revolving Credit Loans provided for in Section 2.01(b) hereof, the Swingline Lender agrees to make Swingline Loans loans ("SWINGLINE LOANS") to the Borrower from time to time Revolving Credit Borrowers during the Availability Revolving Credit Borrowing Period. During the Revolving Credit Borrowing Period, in an aggregate principal amount at any time outstanding the Revolving Credit Borrowers may borrow, repay and reborrow Swingline Loans, PROVIDED that will not result in the sum of (ix) the aggregate principal amount of outstanding all Revolving Credit Loans (including all Swingline Loans), together with the aggregate amount of all Letter of Credit Liabilities PLUS (y) the Reserved Commitments, shall not at any time exceed the aggregate amount of the Revolving Credit Commitments nor shall the aggregate principal amount of all Swingline Loans exceeding exceed $10,000,000 20,000,000. All Swingline Loans shall be made only as Base Rate Loans and may not be made as or (ii) Converted into Eurodollar Loans. Upon demand by the sum of Swingline Lender through the total Administrative Agent, each other Lender having a Revolving Credit Exposures exceeding Commitment shall purchase from the total Commitments; provided that Swingline Lender, and the Swingline Lender shall not be required sell and assign to make a each other such Lender, such other Lender's Revolving Credit Commitment Percentage of each outstanding Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits (and subject to the terms related claims for accrued and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the unpaid interest thereon) made by such Swingline Lender’s risk with respect to , by Credit Agreement ---------------- making available for the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 its Applicable Lending Office to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require for the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage account of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay by deposit to the Administrative Agent's Account, in same day funds, an amount equal to the sum of (x) the portion of the outstanding principal amount of such Swingline Loans to be purchased by such Lender PLUS (y) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Swingline Loans. Each Lender's obligations to make such payments to the Administrative Agent for the account of the Swingline Lender under this paragraph, and the Swingline Lender's right to receive the same, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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, including including, without limitation, the occurrence and continuance failure of a Default any other Lender to make its payment under this paragraph, the financial condition of any Obligor, the existence of any Default, the failure of any of the conditions set forth in Section 7 hereof to be satisfied, or reduction the termination of all or termination any of the Commitments, and that each . Each such payment to the Swingline Lender shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender shall comply with agrees to purchase its obligation under this paragraph Revolving Credit Commitment Percentage of such outstanding Swingline Loans on (x) the Business Day on which demand therefor is made by wire transfer such Swingline Lender, PROVIDED that notice of immediately available fundssuch demand is given not later than 12:00 noon New York City time on such Business Day or (y) the first Business Day next succeeding such demand if notice of such demand is given after such time. Upon any such assignment by the Swingline Lender to any other Lender of a portion of the Swingline Lender's Swingline Loans, in the same manner as provided in Section 2.06 Swingline Lender represents and warrants to such other Lender that the Swingline Lender is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to Loans made by such Lender (Swingline Loan. If and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of extent that any Lender shall not have so made the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 available to the Administrative Agent, as applicable, if and such Lender agrees to pay to the extent Administrative Agent for the account of the Swingline Lender forthwith on demand such payment amount together with interest thereon, for each day from the date of demand by the Swingline Credit Agreement ---------------- - 57 - Lender until the date such amount is required to be refunded paid to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve Administrative Agent, at the Borrower of any default in the payment thereofFederal Funds Rate.
Appears in 1 contract
Swingline Loans. (a) Subject to On the terms and conditions set forth hereinin this Agreement, in addition to other Loans hereunder, the Swingline Lender agrees to make Swingline Loans to the Borrower Borrower, from time to time during the Availability Revolving Credit Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of the outstanding Swingline Loans exceeding $10,000,000 100,000,000 or (ii) the sum of the total Revolving Credit outstanding Committed Loans and Swingline Loans and the LC Exposures exceeding the total aggregate 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 hereinlimits, the Borrower may borrowborrow under this Section, repay or prepay Swingline Loans and reborrow Swingline Loansat any time during the Revolving Credit Period under this Section. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the The Borrower shall notify give the Administrative Agent notice (a “Notice of such request Swingline Borrowing”) by telephone (confirmed by telecopy), not later than 12:00 noon, Noon (New York City time, ) on the day date of a proposed each Swingline Loan. Each such notice telephonic Notice of Swingline Borrowing shall be irrevocable and shall specify be confirmed promptly by hand delivery or facsimile to the requested Agent of a written Notice of Swingline Borrowing. Each telephonic or written Notice of Swingline Borrowing shall specify:
(i) the date (of such Borrowing, which shall be a Domestic Business Day,
(ii) and the aggregate amount of such Borrowing, and
(iii) the location and number of the account of the Borrower to which funds are to be disbursed, or, in the case of a Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), the identity of the Issuing Bank that has made such LC Disbursement. Promptly following the receipt of a Notice of Swingline Loan. The Administrative Borrowing in accordance with this Section, the Agent will promptly shall advise the Swingline Lender of any such notice received from the Borrowerdetails thereof. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit wire transfer to the general deposit account of the Borrower with or to the Issuing Bank specified in such Notice of Swingline Lender (orBorrowing, in as the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)may be, by remittance to the relevant Issuing Bank) by 3:00 p.m.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 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on Loan specified in such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount Notice of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofBorrowing.
Appears in 1 contract
Samples: Credit Agreement (Aetna Inc /Pa/)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender Bank agrees to make Swingline Loans denominated in dollars to the any Borrower or any Additional Borrower from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of the outstanding Swingline Loans exceeding $10,000,000 or 50,000,000, (ii) the sum aggregate principal amount of the total outstanding Swingline Loans made by the Swingline Bank, together (without duplication) with the Revolving Credit Exposures Exposure of the Swingline Bank, exceeding the total aggregate principal amount of the Revolving Commitment of the Swingline Bank or (iii) the aggregate Revolving Exposure exceeding the aggregate Revolving Commitments; provided that the Swingline Lender Bank shall not be required to make a Swingline Loan Loans to refinance an outstanding Swingline Loan. Each Swingline Loan shall be a Base Rate Loan. Each Swingline Loan shall be in an amount that is an integral multiple of $100,000 and not less than $500,000; provided that a Swingline Loan may be in an aggregate amount that is equal to the entire unused balance of the aggregate Revolving Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.18. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers and Additional Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the a Borrower or Additional Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy)telephone, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile or other electronic imaging to the Administrative Agent of a written Notice of Swingline Borrowing. Each such telephonic and written Notice of Swingline Borrowing shall specify the requested date (which shall be a Domestic Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender Bank of any such notice received from the any Borrower or any Additional Borrower. The Swingline Lender Bank shall make each Swingline Loan available to the requesting Borrower or Additional Borrower by means of a credit to the general deposit account of the such Borrower or Additional Borrower maintained with the Swingline Lender Bank (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)2.18, by remittance to the relevant applicable Issuing Bank or, to the extent that the Revolving Banks of the applicable Class have made payments pursuant to Section 2.18 to reimburse such Issuing Bank, to such Revolving Banks and such Issuing Bank as their interests may appear) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender Bank may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 noon, New York City time, on any Domestic Business Day require the Lenders Revolving Banks to acquire participations on such Domestic Business Day in all or a portion of the Swingline Loans outstandingmade by the Swingline Bank and outstanding at such time. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders the Revolving Banks will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each LenderRevolving Bank, specifying in such notice such LenderBank’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender Revolving Bank hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline LenderBank, such LenderBank’s Applicable Percentage of such Swingline Loan or LoansSwingline Loans in Dollars. Each Lender Revolving Bank acknowledges and agrees that, in making any Swingline Loan, the Swingline Bank shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrowers and Additional Borrowers deemed made pursuant to Section 3.2 unless, at least one Domestic Business Day prior to the time such Swingline Loan was made, the Majority in Interest of the Revolving Banks shall have notified the Swingline Bank (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 3.2 would not be satisfied if such Swingline Loan were then made (it being understood and agreed that, in the event the Swingline Bank shall have received any such notice, it shall have no obligation to make any Swingline Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist). Each Revolving Bank further 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, subject to Section 2.16. Each Lender Revolving Bank 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 2.4 with respect to Loans made by such Lender Bank (and Section 2.06 2.4 shall apply, mutatis mutandis, to the payment obligations of the LendersRevolving Banks under this paragraph), and the Administrative Agent shall promptly pay remit to the Swingline Lender Bank the amounts so received by it from the LendersRevolving Banks. The Administrative Agent shall notify the Borrower Borrowers and Additional 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 in Dollars and not to the Swingline LenderBank. Any amounts received by the Swingline Lender Bank from the Borrower Borrowers or Additional Borrowers (or other party Person on behalf of the BorrowerBorrowers or Additional Borrowers) in respect of a Swingline Loan after receipt by the Swingline Lender Bank of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Bank to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders Revolving Banks that shall have made their payments pursuant to this paragraph and to the Swingline LenderBank, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender Bank or to the Administrative Agent, as applicable, and thereafter to the Borrowers or the Additional Borrowers, if and to the extent such payment is required to be refunded to the Borrower Borrowers or the Additional Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the any Borrower or any Additional Borrower of any default in the payment thereofits obligation to repay such Swingline Loan.
Appears in 1 contract
Samples: Credit Agreement (Allegion PLC)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans in Dollars to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 the Swingline Loan Sublimit or (ii) the sum aggregate principal amount of the total Revolving Credit Exposures exceeding the total Revolving 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, in accordance with the procedures for Swingline Loans set forth on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. Schedule 1.01A. The Administrative Agent will promptly advise the Swingline Lender of any such notice of a request for a Swingline Loan Borrowing received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 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 such Lender’s Applicable Percentage of such Swingline Loan or 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 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, upon the Swingline Lender agrees to make Swingline Loans to the request of Borrower from time to time during the Availability Commitment Period, in an aggregate principal amount at any time outstanding that the Swingline Lender may, but will not result in be obligated to, make swingline loans (ithe “Swingline Loans”) to Borrower; notwithstanding the fact that such Swingline Loans, when aggregated with the Percentage Share of the Revolving Loans and LC Obligations of the Lender acting as Swingline Lender, may exceed such Lender’s Revolving Loan Commitment; provided, however that the (y) aggregate principal amount of outstanding Swingline Loans exceeding at any time outstanding shall not exceed $10,000,000 or 10,000,000, and (iiz) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within Notwithstanding the foregoing limits and subject to the terms and conditions set forth hereinforegoing, the Borrower may borrow, prepay aggregate outstanding combined principal balance of the Revolving Loans and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender Loans outstanding at any time together with all LC Obligations shall not be obligated to make any exceed the Aggregate Commitment. Each Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(bi) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business DayBase Rate Loan, (ii) and shall be made in the minimum amount of $100,000.00 and integral multiples thereof or in the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender amount of any such notice received from unused portion of the Borrower. The Swingline Lender shall make each Swingline Loan available to Aggregate Commitment, and (iii) may be repaid and, so long as no Default or Event of Default exists hereunder, reborrowed, at the Borrower by means of a credit to the general deposit account option of the Borrower in accordance with the provisions hereof. There shall be no further Borrowings under Swingline Lender (or, in Loans after the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) Maturity Date. The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.9:00 a.m. Houston, New York City time, Texas time on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage Share of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Share of such Swingline Loan or Loans. Each 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, Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 2.2 with respect to Loans made by such Lender (and Section 2.06 2.2 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof. Whenever the Borrower requests a Swingline Loan it must deliver to Agent a Borrowing Notice as described in Section 2.2. The Borrower’s obligation to repay the Swingline Loans made by the Swingline Lender shall be evidenced by a revolving credit promissory note duly executed and delivered by the Borrower to the Swingline Lender substantially in the form of Exhibit 2.16 hereto (the “Swingline Note”), and the Swingline Note shall (i) be payable to the order of the Swingline Lender and be dated as of the Closing Date, (ii) be in a stated principal amount equal to $10,000,000, (iii) prior to the Maturity Date, be payable as provided herein and mature on the Maturity Date, (iv) bear interest as provided in this Section 2.16 and (v) be entitled to the benefits of this Agreement and the other Loan Documents. All outstanding principal (and any accrued, unpaid interest) of any Swingline Loan will be due and payable on the earliest of (i) the Maturity Date, (ii) the first date after such Swingline Loan is made that is the last day of a calendar month and is at least two Business Days after such Swingline Loan is made, and (iii) the first date that a Revolving Loan is made after the date of such Swingline Loan. The unpaid principal amount of each Swingline Loan shall bear interest at an annual rate equal to the Adjusted Base Rate in effect from time to time. The obligation of the Swingline Lender to make Swingline Loans to the Borrower is subject to the same conditions precedent for the making of Loans under Section 4.2. Increase of Commitments. vii) Subject to Section 2.17(b), the Borrower may increase the Aggregate Commitment then in effect by entering into an Incremental Commitment Agreement with one or more banks or financial institutions (each an “Incremental Lender”), pursuant to which each such Incremental Lender’s Revolving Loan Commitment shall be increased or, if such Incremental Lender was not a Lender prior to entering such Incremental Commitment Agreement, pursuant to which such Incremental Lender makes and is allocated a Revolving Loan Commitment. Any increase in the Aggregate Commitment pursuant to this Section 2.17 will be subject to the satisfaction of the following conditions: no Event of Default has occurred and is continuing; the Borrower and each Incremental Lender shall have executed and delivered an Incremental Commitment Agreement and each Incremental Lender, if not already a Lender, shall have delivered to the Agent a completed administrative questionnaire; the Agent shall have delivered its prior written consent, which consent shall not be unreasonably withheld, to each such Incremental Lender, unless such Incremental Lender is already a Lender or an Affiliate of a Lender; each such increase shall be at least $5,000,000; the cumulative increase in Revolving Loan Commitments pursuant to this Section 2.19 shall not exceed $50,000,000; no event shall have occurred since December 31, 2009, with respect to Borrower and its Subsidiaries, taken as a whole, that has resulted, or could reasonably be expected to result, in a Material Adverse Change; on the effective date of such increase, no Eurodollar Loan shall be outstanding or if any Eurodollar Loans are outstanding, then the effective date of such increase will be the last day of the Interest Period in respect of such Eurodollar Loans unless the Borrower pays compensation pursuant to Section 3.5; the aggregate amount of the Lenders’ Revolving Loan Commitments shall not exceed $175,000,000 without the approval of all Lenders; and the Agent shall have received such corporate resolutions of the Borrower and legal opinions of counsel to the Borrower as the Agent may reasonably request with respect thereto, in each case in form and substance reasonably satisfactory to the Agent. Upon the effectiveness of each Incremental Commitment Agreement executed by an Incremental Lender, (i) such Incremental Lender will become a Lender for all purposes and to the same extent as if originally a party hereto and will be bound by and entitled to the benefits of this Agreement, (ii) the Revolving Loan Commitments and Aggregate Commitment will be deemed to include the new or increased Revolving Loan Commitment of such Incremental Lender, and (iii) such Incremental Lender shall purchase a pro rata portion of the outstanding Loans (and participation interests in Letters of Credit) from each of the other Lenders (and such Lenders hereby agree to sell and to take all such further action to effectuate such sale) so that each Lender (including each Incremental Lender) holds its Percentage Share of the Revolving Facility Usage. Upon its receipt of a duly completed Incremental Commitment Agreement, executed by the Borrower and each Incremental Lender party thereto, and the administrative questionnaire referred to in Section 2.17(b)(ii), and subject to the satisfaction of the other conditions of Section 2.17, the Agent shall accept such Incremental Commitment Agreement and record the information contained therein in the Register. No increase in the aggregate Revolving Loan Commitments will be effective for purposes of this Agreement unless the relevant Incremental Commitment Agreement shall have been delivered to the Agent.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower Borrowers, from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount sum of outstanding the total Swingline Loans Exposures exceeding $10,000,000 the Swingline Commitment or (ii) the sum of the total Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding the total Commitments; provided that (A) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and (B) the Swingline Lender shall not make a Swingline Loan if it shall have been notified by the Administrative Agent at the written request of the Required Lenders that a Default or an Event of Default has occurred and is continuing and that, as a result, no further Swingline Loans shall be made by it (a “Swingline Suspension Notice”). Each Swingline Loan shall be made as part of a Borrowing consisting of Swingline Loans made by the Swingline Lender. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Each Swingline Loan at shall be in an integral multiple of $1,000,000; provided that a time when a Lender Swingline Loan may be in an aggregate amount that is a Defaulting Lender unless required to finance the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including reimbursement of an LC Disbursement as contemplated by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansSection 2.06(e).
(b) To request Swingline Borrowings, a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not ) no later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline LoanBorrowing. Each such notice shall be irrevocable and shall specify the requested borrowing date (which shall be a Business Day) ), and the aggregate amount of the requested Swingline LoanBorrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the a Borrower. The Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a credit transfer of funds to the general deposit account of the applicable Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) Administrative Agent by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by By written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day Day, the Swingline Lender may require the Lenders to acquire participations on such Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice the percentage of the applicable Swingline Loans allocated to such Lender’s Lender based on its respective Applicable Percentage of such Swingline Loan or LoansPercentage. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s its Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available fundsthat, 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 absence of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.a
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions and relying upon the representations and warranties herein set forth hereinforth, the each Swingline Lender agrees to make Swingline Loans in Euro to the Borrower Borrowers, at any time and from time to time during on and after the Availability PeriodSecond Amendment Effective Date and while the Commitments remain in effect, in an aggregate principal amount at any time outstanding that will not result in (i) the Dollar Equivalent of the aggregate outstanding principal amount of outstanding the Swingline Loans of such Swingline Lender exceeding $10,000,000 or its Swingline Commitment, (ii) the sum of the total Revolving Credit Exposures Exposure of any Lender exceeding the total CommitmentsCommitment of such Lender or (iii) the Aggregate Credit Exposure exceeding the Total Commitment; provided that the no 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 Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the The failure of any Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the shall not in itself relieve any other Swingline Lender has entered into arrangements satisfactory of its obligations hereunder (it being understood, however, that no Swingline Lender shall be responsible for the failure of any other Swingline Lender to it and the Borrower make any Swingline Loan required to eliminate the be made by such other Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans).
(b) To In order to request a Swingline LoanLoan from any Swingline Lender, the applicable Borrower shall notify hand deliver or fax to the Administrative Agent a duly completed Swingline Borrowing Request in the form of such request by telephone (confirmed by telecopy), Exhibit A-6 not later than 12:00 noon10:00 a.m., New York City timeLocal Time, on the day of a such proposed Swingline Loan. Each such Such notice shall be irrevocable and shall in each case specify (i) the name of the applicable Borrower, (ii) the name of the applicable Swingline Lender(s), (iii) the requested date of such Swingline Loan (which shall be a Business Day) and the amount thereof requested to be made by the applicable Swingline Lender(s) and (iv) the location and number of the requested Swingline Loansuch Borrower’s account to which funds are to be disbursed. The Administrative Agent will promptly advise the applicable Swingline Lender Lender(s) of any such notice Swingline Borrowing Request received from the a Borrower. The applicable Swingline Lender shall Lender(s) shall, promptly after receipt of such Swingline Borrowing Request from the Administrative Agent, make each Swingline Loan available to the applicable Borrower by means of a credit wire transfer to the general deposit account of the Borrower with the Swingline Lender (or, specified in the case of a applicable Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanBorrowing Request.
(c) The Each Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 p.m., New York City timeLocal Time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans outstandingmade by such Swingline Lender. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage Share of such Swingline Loan or Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, promptly upon receipt of notice as provided aboveabove (and in any event, if such notice is received by 12:00 p.m., 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 p.m., Local Time, on a Business Day, no later than 10:00 a.m., Local Time, on the immediately succeeding Business Day), to pay in Euro to the Administrative Agent, for the account of the applicable Swingline Lender, such Lender’s Applicable Percentage Share of such Swingline Loan or Swingline Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph (c) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender shall comply with its obligation under this paragraph (c) by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.02(c) with respect to Loans made by such Lender (and Section 2.06 2.02(c) shall apply, mutatis mutandis, to the payment obligations of the LendersLenders under this paragraph (c)), and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the applicable Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph (c), 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 any Swingline Lender from the applicable Borrower (or other party on behalf of the applicable 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph (c) 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 applicablethe case may be, if and to the extent such payment is required to be refunded to the applicable Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph (c) shall not relieve the Borrower Borrowers of any default in the payment thereof.
(d) Any Swingline Lender may be replaced at any time by written agreement among the Company, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective, the applicable Borrowers shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.09(e). From and after the effective date of any such replacement, (i) the successor Swingline Lender shall have all the rights and obligations of 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 refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the 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 its replacement, but shall not be required to make 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 30 days’ prior written notice to the Administrative Agent, the Company and the other Lenders, in which case, such Swingline Lender shall be replaced in accordance with paragraph (d) of this Section.
Appears in 1 contract
Samples: Five Year Competitive Advance and Revolving Credit Facility Agreement (ITT Inc.)
Swingline Loans. (ai) Subject to the terms and conditions set forth hereinrequirements of this clause (c), the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) so long as the aggregate principal amount of outstanding Swingline Loans exceeding plus the amount of the requested Swingline Loan does not exceed the Maximum Swingline Loan Amount, Borrower may request that Swingline Lender make available to Borrower by transfer of immediately available funds a Swingline Loan. The Swingline Loans shall be advanced by Agent (subject to the requirements of Section 8.2 hereof) as Domestic Rate Loans and shall not exceed in the aggregate at any time outstanding the Maximum Swingline Loan Amount. In the event that on any Business Day, Borrower desires that all or any portion of the outstanding Swingline Loans should be reduced in whole or in part, Borrower shall promptly notify Agent to that effect and indicate the portion of the Swingline Loans to be reduced. Borrower hereby agrees that it shall notify Agent to reduce the outstanding Swingline Loans to $10,000,000 0 at least once every week and, in any event, at any time that the aggregate outstanding principal amount of Swingline Loan equals the Maximum Swingline Loan Amount. Swingline Lender shall notify Agent to reduce the outstanding Swingline Loans to $0 by conversion of such Swingline Loans to Revolving Advances as described in sub-clause (ii) of this Section 2.1(c), at least once each week if Borrower fails to do so. Agent agrees to promptly transmit to Lenders the information contained in each notice received by Agent from Borrower or Swingline Lender and shall concurrently notify Lenders of each Lender’s Commitment Percentage of the obligation to make a Revolving Advance to repay the Swingline Loan (or portion thereof). In no event shall the aggregate outstanding Advances exceed the Maximum Revolving Advance Amount.
(ii) Each of the Lenders hereby unconditionally and irrevocably agrees to fund to Agent for the benefit of Swingline Lender, in lawful money of the United States and in same day funds, not later than 1:00 p.m. (New York time) on the Settlement Date, such Xxxxxx’s Commitment Percentage of a Revolving Advance (which Revolving Advance shall be a Domestic Rate Loan and shall be deemed to be requested by Borrower) in the principal amount of such portion of the Swingline Loans which is required to be paid to Swingline Lender under this Section 2.1(c) (regardless of whether the conditions precedent thereto set forth in Article VIII are then satisfied and whether or not Borrower has provided a Notice of Borrowing under Section 2.2 and whether or not any Default or Event of Default exists or all or any of the Advances have been accelerated, but subject to the other provisions of this Section 2.1(c)). The proceeds of any such Revolving Advance shall be immediately paid over to Agent for the benefit of Swingline Lender for application to the Swingline Loan.
(iii) In the event that an Event of Default shall occur and either (i) such Event of Default is of the type described in Section 10.7 or 10.8 or (ii) the sum of the total no further Revolving Credit Exposures exceeding the total 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in Advances are being made under this Agreement, so long as any such Event of Default is continuing, then, each of the Lenders (other than Swingline Lender) shall be deemed to have irrevocably, unconditionally and immediately purchased a participation from Swingline Lender of such Lender’s Commitment Percentage of the Swingline Loan outstanding as of the date of the occurrence of such Event of Default. Each Lender shall not be obligated effect such purchase by making available an amount equal to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable its Commitment Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, Loan on the Borrower shall notify the Administrative Agent date of such request by telephone purchase in Dollars in immediately available funds to Agent for the benefit of Swingline Lender. In the event any Lender fails to make available to Swingline Lender when due the amount of such Xxxxxx’s participation in the Swingline Loan (confirmed by telecopyas calculated above), not later than 12:00 noon, New York City time, Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest at the day of a proposed Swingline LoanFederal Funds Rate. Each such notice purchase by a Lender shall be irrevocable made without recourse to Swingline Lender, without representation or warranty of any kind, and shall specify the requested date (which shall be a Business Day) effected and amount of the requested evidenced pursuant to documents reasonably acceptable to Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerLender. The Swingline Lender Loans shall make each Swingline Loan available to be evidenced by one or more promissory notes substantially in the Borrower by means form of a credit to the general deposit account Exhibit D. The obligations of the Borrower with the Swingline Lender (orLenders under this Section 2.1(c) shall be absolute, in the case of a Swingline Loan irrevocable and unconditional, shall be made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in under all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional circumstances and shall not be affected by any circumstance whatsoeveraffected, including the occurrence and continuance of a Default reduced or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower impaired for any reasonreason whatsoever. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.45
Appears in 1 contract
Samples: Loan and Security Agreement (Veeco Instruments Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 15,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total CommitmentsMaximum Revolving Availability; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan; provided further that the Swingline Lender shall not be obligated to make any Swingline Loan at any time when any Revolving Lender is at such time a Defaulting Lender or Deteriorating Lender hereunder, unless the Swingline Lender has entered into satisfactory arrangements with the Borrower or such Revolving Lender to eliminate the Swingline Lender’s risk with respect to such Revolving Lender. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the ABL Administrative Agent of such request in writing (delivered by telephone (confirmed by telecopyhand or facsimile), not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. All Swingline Loans shall be Base Rate Borrowings. The ABL Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender Funding Account (or, in the case of a Swingline repayment of another Loan made to finance the reimbursement of an LC Disbursement or fees or expenses as provided in by Section 2.05(e2.10(b), by remittance to the relevant Issuing BankABL Administrative Agent to be distributed to the Revolving Lenders) by 3:00 2:00 p.m., New York City time, on the requested date of such Swingline Loan.
(cb) The Upon the making of a Swingline Lender may by written notice given Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement (as defined below) has been requested with respect to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Loan, each Revolving Lender hereby absolutely and unconditionally agreesshall be deemed, upon receipt of notice as provided abovewithout further action by any party hereto, to pay to the Administrative Agent, for the account of have unconditionally and irrevocably purchased from the Swingline Lender, without recourse or warranty, an undivided interest and participation in such Lender’s Swingline Loan in proportion to its Applicable Percentage of such the Revolving Commitment. The Swingline Loan or LoansLender may, at any time, require the Revolving Lenders to fund their participations. 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 reduction or the subsequent termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. 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 2.07 with respect to ABL 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), and the ABL Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The ABL Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphclause, and thereafter payments in respect of such Swingline Loan shall be made to the ABL Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the ABL Administrative Agent; any such amounts received by the ABL Administrative Agent shall be promptly remitted by the ABL Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph clause 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 ABL Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph clause shall not relieve the Borrower of any default in the payment thereof.
(c) The ABL 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 ABL Administrative Agent elects, by notifying the Revolving Lenders of such requested Settlement by facsimile or e-mail no later than 12:00 noon New York 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 ABL Revolving Loan with respect to which Settlement is requested to the ABL Administrative Agent, to such account of the ABL Administrative Agent as the ABL Administrative Agent may designate not later than 2:00 p.m., New York 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 ABL Administrative Agent shall be applied against the amounts of the Swingline Lender’s Swingline Loans and together with the Swingline Lender’s Applicable Percentage of such Swingline Loan, shall constitute ABL Revolving Loans of such Revolving Lenders, respectively. If any such amount is not transferred to the ABL Administrative Agent by any Revolving Lender on such Settlement Date, the Swingline Lender shall be entitled to recover such amount on demand from such Revolving Lender together with interest thereon as specified in Section 2.07.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Orchard Supply Hardware Stores Corp)
Swingline Loans. (a) i. Subject to the terms and conditions set forth hereinherein (including Section 2.21), 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 Borrower from time to time during the Revolving Availability Period, Period denominated in Dollars in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans Revolving Exposures exceeding $10,000,000 the aggregate Revolving Commitments or (ii) the sum aggregate amount of the total Revolving Credit Exposures Swingline Loans outstanding exceeding the total CommitmentsSwingline Sublimit; provided that (A) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and (B) the Swingline Lender shall not be under any obligation to make any Swingline Loan if, after giving effect to Section 2.21(a)(iv), any Defaulting Lender Fronting Exposure would remain outstanding. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) ii. To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone (confirmed by telecopy)written notice, not later than 12:00 noon, New York City time, on the day of a such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and ), the amount of the requested Swingline Loan. The Administrative Agent will promptly advise Loan and, in the Swingline Lender case of any 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 notice received from the BorrowerLC Disbursement. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower maintained with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.05(f), by remittance to the relevant applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) iii. The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.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 such 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 Section 2.04(c) 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, subject to Section 2.16. Each Revolving Lender shall comply with its obligation under this paragraph Section 2.04(c) 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 LendersRevolving Lenders pursuant to this Section 2.04(c)), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphSection 2.04(c), 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 Borrower (or other party Person on behalf of the 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 Section 2.04(c) 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 applicablethe case may be, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph Section 2.04(c) shall not relieve the Borrower of any default in the payment thereof.
iv. The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below; provided that such Swingline Lender is reasonably acceptable to the Administrative Agent (it being understood that each Revolving Lender that is a Lender on the Effective Date shall be deemed as reasonably acceptable to the Administrative Agent). The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such 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.
v. The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof, provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been 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
Swingline Loans. (a) Subject to the terms and conditions herein set forth hereinforth, the Swingline Lender agrees to make Swingline Loans loans to the Borrower Borrowers at any time and from time to time during on or after the Availability PeriodClosing Date and until the earlier of the Revolving Credit Maturity Date and the termination of the Revolving Credit Commitments, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding all Swingline Loans exceeding $10,000,000 or 50,000,000 in the aggregate, (ii) the sum of the total Aggregate Revolving Credit Exposures Exposure exceeding the total CommitmentsTotal Revolving Credit Commitment or (iii) the Revolving Credit Exposure attributable to the Subsidiary Borrower exceeding the Subsidiary Borrower Sublimit; provided that notwithstanding 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreementforegoing, the Swingline Lender shall not be obligated to make any Swingline Loan Loans at a time when a Revolving Credit Lender is a Defaulting Lender Lender, unless the Swingline Lender has entered into arrangements reasonably satisfactory to it and the US Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Pro Rata Percentage of the outstanding amount of Swingline Loans. Each Swingline Loan shall be in a principal amount that is an integral multiple of $250,000. The Swingline Commitment may be terminated or reduced from time to time as provided herein. Within the foregoing limits, the Borrowers may borrow, pay or prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions and limitations set forth herein.
(b) To request a Swingline Loan, the The relevant Borrower shall notify the Administrative Agent of such request Swingline Lender by fax, or by telephone (promptly confirmed by telecopyfax), not later than 12:00 noon, New York City time, 1:00 p.m. on the day of a proposed Swingline Loan. Each such Such notice shall be delivered on a Business Day, shall be irrevocable and shall refer to this Agreement and shall specify the requested date (which shall be a Business Day) and amount of the requested such Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the such requesting Borrower by means of a credit to an account designated by the general deposit account of relevant Borrower promptly on the date such Swingline Loan is so requested.
(c) Each Borrower with shall have the right at any time and from time to time to prepay any Swingline Loan, in whole or in part, upon giving written or fax notice by such Borrower (or telephone notice promptly confirmed by written, or fax notice) to the Swingline Lender (orbefore 1:00 p.m. on the date of prepayment at the Swingline Lender’s address for notices specified in Section 9.01; provided that any such notice delivered by a Borrower may state that such notice is conditioned upon the effectiveness of other financing arrangements, in which case such notice may be revoked by such Borrower (by notice to the case of a Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(d) Each Swingline Loan made shall be an ABR Loan and, subject to finance the reimbursement provisions of an LC Disbursement Section 2.07, shall bear interest as provided in Section 2.05(e2.06(a), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ce) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, 11:00 a.m. on any Business Day require the Revolving Credit 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 Credit Lenders will participate. Promptly The Administrative Agent will, promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Credit Lender, specifying in such notice such Lender’s Applicable Pro Rata Percentage of such Swingline Loan or LoansLoan. Each In furtherance of the foregoing, each Revolving Credit 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 Revolving Credit Lender’s Applicable Pro Rata Percentage of such Swingline Loan or LoansLoan. Each Revolving Credit 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 reduction or termination an Event of the CommitmentsDefault, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Revolving Credit 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 2.02(c) with respect to Loans made by such Lender (and Section 2.06 2.02(c) shall apply, mutatis mutandis, to the payment obligations of the Lenders), ) and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Credit Lenders. The Administrative Agent shall notify the US 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 amounts received by the Swingline Lender from the relevant Borrower (or other party on behalf of the BorrowerBorrowers) 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall and be promptly remitted distributed by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the relevant Borrower (or other party liable for obligations of the Borrowers) of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions hereof, from time to time at any time during which the CoBank Cash Management Agreement is in effect but in no event later than the Business Day immediately preceding the Revolving Credit Maturity Date, the Swingline Lender may, in reliance upon the agreements of the other Revolving Credit Lenders set forth herein, in its sole discretion, and subject to the Swingline Lender agrees to terms and provisions of the CoBank Cash Management Agreement, make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount not to exceed the Swingline Commitment; provided, that at any one time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding Obligations outstanding may not exceed the total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanRevolving Credit Commitment. Within the foregoing limits of and subject to the terms Available Revolving Commitment, this Section 5.1 and conditions set forth hereinSections 5.2 and 5.4, amounts borrowed under this Section 5.1 may be repaid or prepaid and, at any time during which the CoBank Cash Management Agreement is in effect up to and including the Business Day immediately preceding the Revolving Credit Maturity Date, reborrowed. If at any time the aggregate principal balance of the Swingline Loans then outstanding exceeds the Swingline Commitment, the Borrower may borrow, prepay shall be deemed to have requested the Administrative Agent to make a Revolver Loan in the amount of the difference in the manner and reborrow Swingline Loans. Notwithstanding anything pursuant to the contrary contained in this terms of Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans5.1(b).
(b) To request Any outstanding Swingline Loan shall be payable by the Borrower on demand by the Swingline Lender, a copy of which demand also shall be delivered by the Swingline LoanLender to the Administrative Agent. If the Borrower fails to so reimburse the Swingline Lender on demand (without limiting the Swingline Lender’s remedies with respect to the Borrower in the case of any Revolving Credit Lender’s failure to advance under this Section 5.1(b)), the Borrower shall notify be automatically deemed to have requested the Administrative Agent to make a Revolving Credit Loan in the aggregate amount of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount Revolving Credit Lender agrees to fund its Revolving Credit Commitment Percentage of the requested Swingline Loanany Revolving Credit Loan made pursuant to this Section 5.1(b). The Administrative Agent will shall promptly advise notify each Revolving Credit Lender of the amount of such payment due and each such Revolving Credit Lender, in accordance with the immediately succeeding sentence, shall deliver to the Administrative Agent an amount equal to its Revolving Credit Commitment Percentage thereof. With respect to payment to the Swingline Lender of the unreimbursed amounts described in this Section 5.1(b), if the Revolving Credit Lenders receive notice that any such payment is due (i) prior to 1:00 p.m. on any Business Day, such payment shall be due on the following Business Day, and (ii) after 1:00 p.m. on any Business Day, such payment shall be due on the second succeeding Business Day. Each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Swingline Lender such Revolving Credit Lender’s Revolving Credit Commitment Percentage of each such payment due. In addition to the foregoing, if for any reason any Revolving Credit Lender fails to make payment to the Swingline Lender of any amount due under this Section 5.1(b), such notice received from the Borrower. The Swingline Revolving Credit Lender shall make each Swingline Loan available to be deemed, at the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account option of the Swingline Lender, such to have unconditionally and irrevocably purchased from the Swingline Lender’s Applicable Percentage , without recourse or warranty, an undivided interest and participation in the Swingline Loan in the amount of such Swingline Loan or LoansRevolving Credit Loan, and such interest and participation may be recovered from such Revolving Credit Lender together with interest thereon at the Base Rate for each day during the period commencing on the date of demand and ending on the date such amount is received. Each Revolving Credit Lender acknowledges and agrees that its obligation obligations to fund Revolving Credit Loans and/or to acquire participations in Swingline Loans pursuant to this paragraph is Section 5.1(b) in respect of the Swingline Loan are absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction an Event of Default or termination any failure by the Borrower to satisfy any of the Commitments, and that each such payment shall be made without conditions set forth in Article VII. If any offset, abatement, withholding or reduction whatsoever, subject Revolving Credit Lender fails to Section 2.16. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately make 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it amount of such Revolving Credit Lender’s Revolving Credit Commitment Percentage of any payments due as provided in this Section 5.1(b), the Swingline Lender shall be entitled to recover such amount on demand from such Revolving Credit Lender together with interest at the Base Rate. On the Revolving Credit Maturity Date, if not sooner demanded, the Borrower shall repay in full the outstanding principal amount of the Swingline Loan and the Swingline Commitment shall terminate.
(c) The Swingline Loan shall accrue interest from the Lendersdate made as a Base Rate Loan, at the sum of the Base Rate plus the Applicable Margin applicable from time to time as provided in Section 6.1(c). The Administrative Agent shall notify the Borrower Until each Revolving Credit Lender funds its Revolving Credit Commitment Percentage of any participations in any Swingline its Revolving Credit Loan acquired or purchases a participation pursuant to this paragraphSection 5.1(b), and thereafter payments interest in respect of such the Swingline Loan Loan, or the applicable portion thereof, shall be made to solely for the Administrative Agent account of the Swingline Lender. Notwithstanding any other provision of this Agreement, the Borrower shall make all payments of principal and not interest in respect of the Swingline Loans directly to the Swingline Lender.
(d) The Borrower may request Swingline Loans without regard to minimum amounts. Any amounts received The Borrower may request Swingline Loans by email or by such other methods as shall have been approved in writing in advance by the Swingline Lender from provided such request is made by an employee or representative of the Borrower (or other party designated in writing by the Borrower as authorized to make such a request and is made not later than 3:00 p.m. on behalf the day of the Borrower) in respect of a proposed Swingline Loan 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 Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appearLoan; provided that any if such payment so remitted request is made by telephone, fax or email, upon request, the Borrower shall be repaid promptly confirm such request in writing to the Swingline Lender or to and the Administrative Agent, . Swingline Loans also may be made automatically on any day as applicable, if and to the extent such payment provided in the CoBank Cash Management Agreement, so long as the CoBank Cash Management Agreement is required to be refunded in effect. Notwithstanding any other provision of this Agreement, the Borrower shall make all payments of principal and interest in respect of Swingline Loans directly to the Borrower for any reason. Swingline Lender by such method and to such account or place as the Swingline Lender may from time to time designate in writing.
(e) The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve may be prepaid by the Borrower of at any default in the payment thereoftime without penalty.
Appears in 1 contract
Samples: Credit Agreement (Hickory Tech Corp)
Swingline Loans. (a) Subject to The Swingline Lender agrees, on the terms and subject to the conditions set forth herein, the Swingline Lender agrees to make Swingline Loans a portion of the Revolving A Commitment available to the Parent Borrower from time to time during prior to the Availability PeriodSwingline Termination Date by making Swingline Loans to the Parent Borrower in Dollars, Sterling or Euros (each such loan, a “Swingline Loan” and collectively, the “Swingline Loans”), in each case in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount Dollar Equivalent of outstanding the Swingline Loans outstanding at any one time exceeding $10,000,000 or the Swingline Commitment, (ii) with regard to each Revolving A Lender individually (other than the sum Swingline Lender in its capacity as such), the Dollar Equivalent of such Lender’s Revolving A Credit Exposure exceeding such Lender’s Revolving A Commitment, or (iii) with regard to the total Revolving A Lenders collectively, the Aggregate Revolving A Credit Exposures Exposure exceeding the total Commitments; Aggregate Revolving A 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated at any time to make any Swingline Loan at a time when a if any Revolving A Lender is at that time a Defaulting Lender and after giving effect to any reallocation of the Participation Interest of such Defaulting Lender pursuant to Section 4.11.1(d), the Swingline Lender has any actual or potential Fronting Exposure with respect to such Defaulting Lender arising from the Swingline Loan proposed to be made, unless the Swingline Lender has entered into arrangements arrangements, including the delivery of cash collateral, satisfactory to it and the Swingline Lender (in its sole discretion) with the Parent Borrower or such Defaulting Lender to eliminate such Fronting Exposure. Swingline Loans may be repaid and reborrowed in accordance with the provisions hereof prior to the Swingline Lender’s risk with respect Termination Date. The proceeds of any Swingline Loan may be used, in whole or in part, to the Defaulting Lender’s or Defaulting Lenders’ participation in such refund any prior Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansLoan.
(b) To The Parent Borrower shall request a Swingline Loan, Loan by irrevocable written notice (or telephone notice promptly confirmed in writing) substantially in the Borrower shall notify form of Exhibit A–2 hereto (a “Swingline Loan Request”) to the Swingline Lender and the Administrative Agent of such request by telephone (confirmed by telecopy), i) not later than 12:00 noon3:00 p.m. Charlotte, New York City time, North Carolina time on the day date of funding a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (Loan denominated in Dollars which shall be a Business Day, and (ii) and amount of not later than 11:00 a.m. Charlotte, North Carolina time on the Business Day prior to the date requested to borrow a Swingline LoanLoan denominated in Sterling or Euros. The Administrative Agent will promptly advise Each Swingline Loan shall be made as a LIBOR Market Index Rate Loan and, in each case, subject to Section 2.6(c), shall have such maturity date as agreed to by the Swingline Lender of any such notice received from and the Parent Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) Swingline Loans shall be due and payable on the earliest of (i) the maturity date agreed to by the Swingline Lender and the Parent Borrower with respect to such Swingline Loan, which shall not be longer than 30 days after the date of borrowing, (ii) the Swingline Termination Date, (iii) the occurrence of a Bankruptcy Event with respect to the Parent Borrower, any Guarantor or any Foreign Subsidiary Borrower with Obligations then outstanding under this Agreement and (iv) the acceleration of any Loan or the termination of the Aggregate Commitment pursuant to Section 11.2.1.
(d) The Swingline Lender may may, at any time in its sole discretion, by written notice given delivered to the Administrative Agent not no later than 10:00 11:00 a.m., New York City Charlotte, North Carolina time, on any Business Day Day, require the Revolving A Lenders to acquire participations on such Business Day (or, in the case of Swingline Loans denominated in Euros or Sterling, the next Business Day) in all or a portion of the Swingline Loans outstanding. Such notice , and each Revolving A Lender hereby irrevocably agrees to purchase, and shall specify the aggregate amount of be deemed to have purchased, a Participation Interest in such outstanding Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof an amount equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account its Revolving A Ratable Share of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loansunpaid amount together with accrued interest thereon. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.Not later than 2:00
Appears in 1 contract
Samples: Credit Agreement (Brinks Co)
Swingline Loans. (ai) Subject to the terms and conditions set forth hereinrequirements of this clause (c), the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) so long as the aggregate principal amount of outstanding Swingline Loans exceeding plus the amount of the requested Swingline Loan does not exceed the Maximum Swingline Loan Amount, Borrower may request that Swingline Lender make available to Borrower by transfer of immediately available funds a Swingline Loan. The Swingline Loans shall be advanced by Agent (subject to the requirements of Section 8.2 hereof) as Domestic Rate Loans and shall not exceed in the aggregate at any time outstanding the Maximum Swingline Loan Amount. In the event that on any Business Day, Borrower desires that all or any portion of the outstanding Swingline Loans should be reduced in whole or in part, Borrower shall promptly notify Agent to that effect and indicate the portion of the Swingline Loans to be reduced. Borrower hereby agrees that it shall notify Agent to reduce the outstanding Swingline Loans to $10,000,000 0 at least once every week and, in any event, at any time that the aggregate outstanding principal amount of Swingline Loan equals the Maximum Swingline Loan Amount. Swingline Lender shall notify Agent to reduce the outstanding Swingline Loans to $0 by conversion of such Swingline Loans to Revolving Advances as described in sub-clause (ii) of this Section 2.1(c), at least once each week if Borrower fails to do so. Agent agrees to promptly transmit to Lenders the information contained in each notice received by Agent from Borrower or Swingline Lender and shall concurrently notify Lenders of each Lender’s Commitment Percentage of the obligation to make a Revolving Advance to repay the Swingline Loan (or portion thereof). In no event shall the aggregate outstanding Advances exceed the Maximum Revolving Advance Amount.
(ii) Each of the Lenders hereby unconditionally and irrevocably agrees to fund to Agent for the benefit of Swingline Lender, in lawful money of the United States and in same day funds, not later than 1:00 p.m. (New York time) on the Settlement Date, such Xxxxxx’s Commitment Percentage of a Revolving Advance (which Revolving Advance shall be a Domestic Rate Loan and shall be deemed to be requested by Borrower) in the principal amount of such portion of the Swingline Loans which is required to be paid to Swingline Lender under this Section 2.1(c) (regardless of whether the conditions precedent thereto set forth in Article VIII are then satisfied and whether or not Borrower has provided a Notice of Borrowing under Section 2.2 and whether or not any Default or Event of Default exists or all or any of the Advances have been accelerated, but subject to the other provisions of this 45
Section 2.1 (c)). The proceeds of any such Revolving Advance shall be immediately paid over to Agent for the benefit of Swingline Lender for application to the Swingline Loan.
(iii) In the event that an Event of Default shall occur and either (i) such Event of Default is of the type described in Section 10.7 or 10.8 or (ii) the sum of the total no further Revolving Credit Exposures exceeding the total 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in Advances are being made under this Agreement, so long as any such Event of Default is continuing, then, each of the Lenders (other than Swingline Lender) shall be deemed to have irrevocably, unconditionally and immediately purchased a participation from Swingline Lender of such Lender’s Commitment Percentage of the Swingline Loan outstanding as of the date of the occurrence of such Event of Default. Each Lender shall not be obligated effect such purchase by making available an amount equal to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable its Commitment Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, Loan on the Borrower shall notify the Administrative Agent date of such request by telephone purchase in Dollars in immediately available funds to Agent for the benefit of Swingline Lender. In the event any Lender fails to make available to Swingline Lender when due the amount of such Xxxxxx’s participation in the Swingline Loan (confirmed by telecopyas calculated above), not later than 12:00 noon, New York City time, Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest at the day of a proposed Swingline LoanFederal Funds Rate. Each such notice purchase by a Lender shall be irrevocable made without recourse to Swingline Lender, without representation or warranty of any kind, and shall specify the requested date (which shall be a Business Day) effected and amount of the requested evidenced pursuant to documents reasonably acceptable to Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerLender. The Swingline Lender Loans shall make each Swingline Loan available to be evidenced by one or more promissory notes substantially in the Borrower by means form of a credit to the general deposit account Exhibit D. The obligations of the Borrower with the Swingline Lender (orLenders under this Section 2.1(c) shall be absolute, in the case of a Swingline Loan irrevocable and unconditional, shall be made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in under all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional circumstances and shall not be affected by any circumstance whatsoeveraffected, including the occurrence and continuance of a Default reduced or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower impaired for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofreason whatsoever.
Appears in 1 contract
Samples: Loan and Security Agreement (Veeco Instruments 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 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 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 hereinapplicable to other ABR Loans funded by the Revolving Lenders, except that all payments thereon shall be payable to the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the solely for its own account. 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless if the requested Swingline Lender has entered into arrangements satisfactory Loan exceeds Availability (before or after giving effect to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Loan). All Swingline LoansLoans 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, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice each Revolving Lender shall be irrevocable deemed, without further action by any party hereto, to have unconditionally and shall specify irrevocably purchased from the requested date (which shall be a Business Day) Swingline Lender, without recourse or warranty, an undivided interest and amount participation in such Swingline Loan in proportion to its Applicable Percentage of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerRevolving 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 Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (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(e), by remittance to the relevant 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 New York City 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 10:00 a.m.2:00 p.m., New York City time, on any Business Day require such Settlement Date. Settlements may occur during the 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 Lenders will participate. Promptly upon receipt of such noticeand, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such together with Swingline Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agreesLoan, 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 shall constitute Revolving Loans of such Swingline Loan or LoansRevolving Lenders, respectively. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph If any such amount is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 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 Borrower (or other party on behalf of the 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 entitled to the Administrative Agent; any recover from such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline LenderLender on demand such amount, together with interest thereon, 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 Borrower for any reason. The purchase of participations specified in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofSection 2.07.
Appears in 1 contract
Swingline Loans. (ai) Subject to the terms and conditions set forth hereinrequirements of this clause (c), the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) so long as the aggregate principal amount of outstanding Swingline Loans exceeding plus the amount of the requested Swingline Loan does not exceed the Maximum Swingline Loan Amount, Borrower may request that Swingline Lender make available to Borrower by transfer of immediately available funds a Swingline Loan. The Swingline Loans shall be advanced by Agent (subject to the requirements of Section 8.2 hereof) as Domestic Rate Loans and shall not exceed in the aggregate at any time outstanding the Maximum Swingline Loan Amount. In the event that on any Business Day, Borrower desires that all or any portion of the outstanding Swingline Loans should be reduced in whole or in part, Borrower shall promptly notify Agent to that effect and indicate the portion of the Swingline Loans to be reduced. Borrower hereby agrees that it shall notify Agent to reduce the outstanding Swingline Loans to $10,000,000 0 at least once every week and, in any event, at any time that the aggregate outstanding principal amount of Swingline Loan equals the Maximum Swingline Loan Amount. Swingline Lender shall notify Agent to reduce the outstanding Swingline Loans to $0 by conversion of such Swingline Loans to Revolving Advances as described in sub-clause (ii) of this Section 2.1(c), at least once each week if Borrower fails to do so. Agent agrees to promptly transmit to Lenders the information contained in each notice received by Agent from Borrower or Swingline Lender and shall concurrently notify Lenders of each Lender’s Commitment Percentage of the obligation to make a Revolving Advance to repay the Swingline Loan (or portion thereof). In no event shall the aggregate outstanding Advances exceed the Maximum Revolving Advance Amount.
(ii) Each of the Lenders hereby unconditionally and irrevocably agrees to fund to Agent for the benefit of Swingline Lender, in lawful money of the United States and in same day funds, not later than 1:00 p.m. (New York time) on the Settlement Date, such Xxxxxx’s Commitment Percentage of a Revolving Advance (which Revolving Advance shall be a Domestic Rate Loan and shall be deemed to be requested by Borrower) in the principal amount of such portion of the Swingline Loans which is required to be paid to Swingline Lender under this Section 2.1(c) (regardless of whether the conditions precedent thereto set forth in Article VIII are then satisfied and whether or not Borrower has provided a Notice of Borrowing under Section 2.2 and whether or not any Default or Event of Default exists or all or any of the Advances have been accelerated, but subject to the other provisions of this Section 2.1(c)). The proceeds of any such Revolving Advance shall be immediately paid over to Agent for the benefit of Swingline Lender for application to the Swingline Loan.
(iii) In the event that an Event of Default shall occur and either (i) such Event of Default is of the type described in Section 10.7 or 10.8 or (ii) the sum of the total no further Revolving Credit Exposures exceeding the total 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in Advances are being made under this Agreement, so long as any such Event of Default is continuing, then, each of the Lenders (other than Swingline Lender) shall be deemed to have irrevocably, unconditionally and immediately purchased a participation from Swingline Lender of such Lender’s Commitment Percentage of the Swingline Loan outstanding as of the date of the occurrence of such Event of Default. Each Lender shall not be obligated effect such purchase by making available an amount equal to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable its Commitment Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, Loan on the Borrower shall notify the Administrative Agent date of such request by telephone purchase in Dollars in immediately available funds to Agent for the benefit of Swingline Lender. In the event any Lender fails to make available to Swingline Lender when due the amount of such Xxxxxx’s participation in the Swingline Loan (confirmed by telecopyas calculated above), not later than 12:00 noon, New York City time, Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest at the day of a proposed Swingline LoanFederal Funds Rate. Each such notice purchase by a Lender shall be irrevocable made without recourse to Swingline Lender, without representation or warranty of any kind, and shall specify the requested date (which shall be a Business Day) effected and amount of the requested evidenced pursuant to documents reasonably acceptable to Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerLender. The Swingline Lender Loans shall make each Swingline Loan available to be evidenced by one or more promissory notes substantially in the Borrower by means form of a credit to the general deposit account Exhibit D. The obligations of the Borrower with the Swingline Lender (orLenders under this Section 2.1(c) shall be absolute, in the case of a Swingline Loan irrevocable and unconditional, shall be made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in under all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional circumstances and shall not be affected by any circumstance whatsoeveraffected, including the occurrence and continuance of a Default reduced or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower impaired for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofreason whatsoever.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, upon the Swingline Lender agrees to make Swingline Loans to the request of Borrower from time to time during the Availability Commitment Period, in an aggregate principal amount at any time outstanding that the Swingline Lender may, but will not result in be obligated to, make swingline loans (the “Swingline Loans”) to Borrower, notwithstanding the fact that such Swingline Loans, when aggregated with the Percentage Share of the Revolving Loans and LC Obligations of the Lender acting as Swingline Lender, may exceed such Lender’s Revolving Loan Commitment; provided, however that the (i) the aggregate principal amount of outstanding Swingline Loans exceeding at any time outstanding shall not exceed $10,000,000 or 10,000,000, and (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within Notwithstanding the foregoing limits and subject to the terms and conditions set forth hereinforegoing, the Borrower may borrow, prepay aggregate outstanding combined principal balance of the Revolving Loans and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender Loans outstanding at any time together with all LC Obligations shall not be obligated to make any exceed the Aggregate Commitment. Each Swingline Loan (i) shall be a Base Rate Loan, (ii) shall be made in the minimum amount of $100,000.00 and integral multiples thereof or in the amount of any unused portion of the Aggregate Commitment, and (iii) may be repaid and, so long as no Default or Event of Default exists hereunder, reborrowed, at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and option of the Borrower to eliminate in accordance with the provisions hereof. There shall be no further Borrowings under Swingline Lender’s risk with respect to Loans after the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansMaturity Date.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m.9:00 a.m. Houston, New York City time, Texas time on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage Share of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Share of such Swingline Loan or Loans. Each 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, Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 2.2 with respect to Loans made by such Lender (and Section 2.06 2.2 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(c) Whenever the Borrower requests a Swingline Loan, it must deliver to Agent a Borrowing Notice as described in Section 2.2.
(d) The Borrower’s obligation to repay the Swingline Loans made by the Swingline Lender shall be evidenced by a revolving credit promissory note duly executed and delivered by the Borrower to the Swingline Lender substantially in the form of Exhibit 2.16 hereto (the “Swingline Note”), and the Swingline Note shall (i) be payable to the order of the Swingline Lender and be dated as of the Closing Date, (ii) be in a stated principal amount equal to $10,000,000, (iii) prior to the Maturity Date, be payable as provided herein and mature on the Maturity Date, (iv) bear interest as provided in this Section 2.16 and (v) be entitled to the benefits of this Agreement and the other Loan Documents.
(e) All outstanding principal (and any accrued, unpaid interest) of any Swingline Loan will be due and payable on the earliest of (i) the Maturity Date, (ii) the first date after such Swingline Loan is made that is the last day of a calendar month and is at least two Business Days after such Swingline Loan is made, and (iii) the first date that a Revolving Loan is made after the date of such Swingline Loan.
(f) The unpaid principal amount of each Swingline Loan shall bear interest at an annual rate equal to the Adjusted Base Rate in effect from time to time.
(g) The obligation of the Swingline Lender to make Swingline Loans to the Borrower is subject to the same conditions precedent for the making of Loans under Section 4.2.
Appears in 1 contract
Swingline Loans. (a) Subject to For ease of administration, Base Margin Loans may be made by the terms and conditions SwingLine Lender (in the aggregate, the "SWINGLINE LOANS") in accordance with the procedures set forth herein, in this Agreement for the Swingline Lender agrees making of loans and advances under the Revolving Credit. The unpaid principal balance of the SwingLine Loans shall not at any one time be in excess of the SwingLine Loan Ceiling (which SwingLine Loan Ceiling is subject to make Swingline Loans to the Borrower amendments from time to time during time, by reasonable advance written notice by the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total 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 Agent to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansLead Borrower).
(b) To request a Swingline Loan, The aggregate unpaid principal balance of SwingLine Loans shall bear interest as if the Borrower shall notify same were loans and advances under the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanRevolving Credit.
(c) The Swingline Lender may obligation to repay SwingLine Loans shall be evidenced by written notice given a Note (the "SWINGLINE NOTE") in the form of EXHIBIT 2.6(C), annexed hereto, executed by the Lead Borrower on behalf of itself and the other Borrowers and payable to the Administrative SwingLine Lender. Neither the original nor a copy of the SwingLine Note shall be required, however, to establish or prove any Liability with respect to the SwingLine Loans. Upon the Lead Borrower being provided with an affidavit (which shall include an indemnity reasonably satisfactory to the Lead Borrower) from the Agent not later than 10:00 a.m.to the effect that the SwingLine Note has been lost, New York City timemutilated, or destroyed, the Lead Borrower shall on any Business Day require behalf of itself and the other Borrowers execute a replacement thereof and deliver such replacement to the SwingLine Lender.
(d) For all purposes of this Loan Agreement, the SwingLine Loans and the Lead Borrower's obligations to the SwingLine Lender constitute Revolving Credit Loans and are secured as "Liabilities".
(e) SwingLine Loans may be subject to periodic settlement with the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 13.2 of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline this 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofAgreement.
Appears in 1 contract
Swingline Loans. (a) Subject to For ease of administration of Revolving Credit Loans, Revolving Credit Loans which are Base Margin Loans may be made by the terms and conditions Administrative Agent, in its capacity as the SwingLine Lender (in the aggregate, the “SwingLine Loans”) in accordance with the procedures set forth herein, in this Agreement for the Swingline Lender agrees making of Revolving Credit Loans. The unpaid principal balance of the SwingLine Loans shall not at any one time be in excess of the SwingLine Loan Ceiling (which SwingLine Loan Ceiling is subject to make Swingline Loans to the Borrower amendment from time to time during time, by reasonable advance notice by the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total 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 Administrative Agent to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansLead Borrower).
(b) To request a Swingline Loan, The aggregate unpaid principal balance of SwingLine Loans shall bear interest at the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice rate applicable to Base Margin Loans and shall be irrevocable and shall specify repayable as a Revolving Credit Loan under the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanRevolving Credit.
(c) The Swingline Lender Borrower’s obligation to repay SwingLine Loans may be evidenced by written notice given to a Note in the Administrative Agent not later than 10:00 a.m.form of EXHIBIT 2.7 (“SwingLine Note”), New York City time, on any Business Day require executed by the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely Borrowers and unconditionally agrees, upon receipt of notice as provided above, to pay payable to the Administrative Agent, for . Neither the account original nor a copy of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment SwingLine Note shall be made without required to establish or prove any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16Liability. Each Lender Upon the Lead Borrower being provided with an affidavit (which 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, include an indemnity reasonably satisfactory to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the Lead 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by from the Administrative Agent to the Lenders effect that the SwingLine Note has been lost, mutilated, or destroyed, the Borrowers shall have made their payments pursuant to this paragraph execute and to the Swingline Lender, as their interests may appear; provided that deliver a replacement of any such payment so remitted shall be repaid to the Swingline Lender or SwingLine Note to the Administrative Agent.
(d) For all purposes of this Loan Agreement, as applicable, if the SwingLine Loans and the Borrower’s obligations to the extent such payment is required Administrative Agent constitute Revolving Credit Loans and are secured as “Liabilities.”
(e) SwingLine Loans may be subject to be refunded to periodic settlement with the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofLenders.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make (x) U.S. Swingline Loans to the Company from time to time during the Availability Period and (y) European Swingline Loans to the Company, the Original European Borrower or the Additional European Borrower from time to time during the Availability Period; provided that no such Swingline Loan under any Revolving Credit Facility shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 under such Revolving Credit Facility would exceed the Swingline Loan Sublimit of such Revolving Credit Facility or (ii) the sum of aggregate Revolving Credit Exposures under such Revolving Credit Facility would exceed the total Revolving Commitments under such Revolving Credit Exposures exceeding the total CommitmentsFacility; provided further 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 Company, the Original European Borrower and/or the Additional European Borrower, as applicable, may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to Immediately upon the contrary contained in this Section 2.04 or elsewhere in this Agreementmaking of a Swingline Loan, each Applicable Participant shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Loan in an amount equal to the product of such Defaulting LenderApplicable Participant’s or Defaulting Lenders’ Applicable Percentage times the amount of the outstanding such Swingline LoansLoan.
(b) To request a Swingline Loan, the Company, the Original European Borrower and/or the Additional European Borrower, as applicable, shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by telecopy), not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline LoanLoan Notice. Each Swingline Loan Notice shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 and (ii) the requested date (borrowing date, which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the applicable Borrower by means of a credit to the general deposit account of the such Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the applicable Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Applicable Participant make a Base Rate Loan to such Borrower in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding under the Revolving Credit Facility under which such Swingline Loan or was made. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. Each The Swingline Lender hereby absolutely and unconditionally agrees, upon receipt shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice as provided above, to pay to the Administrative Agent, . Each Applicable Participant shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Applicable Participants fund its risk participation in the relevant Swingline Loan and such Applicable Participant’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Applicable Participant fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Applicable Participant pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Applicable Participant (acting through the Administrative Agent), on demand, such Lenderamount 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 applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Applicable Participant pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Applicable Participant’s Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Applicable Percentage of such Swingline Loan or Loans. Participant (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Applicable Participant’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, any Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or reduction (C) any other occurrence, event or termination condition, whether or not similar to any of the Commitmentsforegoing; provided, and however, that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, Applicable Participant’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 2.164.02. Each No such funding of risk participations shall relieve or otherwise impair the obligation of any Borrower to repay Swingline Loans to such Borrower, together with interest as provided herein.
(i) At any time after any Applicable Participant has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender shall comply with receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Applicable Participant its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Applicable Participant shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Applicable Participants under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing each Borrower of any participations in any for interest on the Swingline Loans to such Borrower. Until each Applicable Participant funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Applicable Participant’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be solely for the account of the Swingline Lender.
(f) Each Borrower shall make all payments of principal and interest in respect of the Swingline Loans made to the Administrative Agent and not such Borrower directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total CommitmentsMaximum Availability; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan; 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 Defaulting Lender or Deteriorating Lender hereunder, unless the Swingline Lender has entered into satisfactory arrangements with the Borrower or such Lender to eliminate the Swingline Lender’s risk with respect to such Lender. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the ABL Administrative Agent of such request by telephone (confirmed by telecopyfacsimile), not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. All Swingline Loans shall be Base Rate Borrowings. The ABL Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender Funding Account (or, in the case of a Swingline repayment of another Loan made to finance the reimbursement of an LC Disbursement or fees or expenses as provided in by Section 2.05(e2.10(b), by remittance to the relevant Issuing BankABL Administrative Agent to be distributed to the Lenders) by 3:00 2:00 p.m., New York City time, on the requested date of such Swingline Loan.
(cb) Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement (as defined below) has been requested with respect to such Swingline Loan, each 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 Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.may, New York City at any time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loansfund their participations. Each 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 reduction or the subsequent termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 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 Lenders), and the ABL Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The ABL Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphclause, and thereafter payments in respect of such Swingline Loan shall be made to the ABL Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the ABL Administrative Agent; any such amounts received by the ABL Administrative Agent shall be promptly remitted by the ABL Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph clause 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 ABL Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph clause shall not relieve the Borrower of any default in the payment thereof.
(c) The ABL 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 ABL Administrative Agent elects, by notifying the Lenders of such requested Settlement by facsimile, telephone or e-mail no later than 12:00 p.m. New York 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 ABL Administrative Agent, to such account of the ABL Administrative Agent as the ABL Administrative Agent may designate not later than 2:00 p.m., New York 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 ABL Administrative Agent shall be applied against the amounts of the Swingline Lender’s Swingline Loans and together with the 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 ABL Administrative Agent by any Lender on such Settlement Date, the Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon as specified in Section 2.07.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Orchard Supply Hardware Stores Corp)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.05, agree to make Swingline Loans in dollars to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or 10,000,000, (ii) the Swingline Lender’s Swingline Exposure exceeding the Swingline Lender’s Swingline Commitment, and (iii) the sum of the total Revolving Credit Exposures exceeding the total CommitmentsMaximum Available Amount; 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (provided that any telephonic notice must be confirmed immediately by telecopydelivery to the Swingline Lender and the Administrative Agent of a Borrowing Request), not later than 12:00 noon2:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender Funding Account (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(cb) Immediately upon the making of a Swingline Loan by the Swingline Lender, and without any further action on the part of the Swingline Lender or the Lenders, the Swingline Lender hereby grants to each Lender, and each Lender hereby acquires from the Swingline Lender, a participation in such Swingline Loan equal to such Lender’s Applicable Percentage of the amount of such Swingline Loan. The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 9:00 a.m., New York City time, on any Business Day require the Lenders to acquire fund such 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 Lenders will participatefund such participations. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely absolutely, unconditionally and unconditionally irrevocably 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 LoansLoans not later than 1:00 p.m. on the day specified in such notice. Each Lender acknowledges and agrees that its obligation to acquire and fund participations in Swingline Loans pursuant to this paragraph is absolute absolute, unconditional and unconditional irrevocable and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of any of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it them from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any . Any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Samples: Credit Agreement (Dean Foods Co)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender Lender, in reliance on the agreements of the Lenders set forth in this Section 2.4, agrees to make Swingline Loans under the Revolving Commitments to the Borrower Borrowers in Dollars from time to time on any Business Day during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or the Swingline Sublimit, (ii) the sum of the total Revolving Credit Exposures Exposure exceeding the total CommitmentsLine Cap then in effect, or (iii) the Revolving Credit Exposure of any Lender exceeding such Lender’s Revolving Commitment; provided that 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 Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to Each Swingline Loan shall be in an amount that is not less than $1,000,000. Swingline Loans shall be Base Rate Loans. Immediately upon the contrary contained in this Section 2.04 or elsewhere in this Agreementmaking of a Swingline Loan by the Swingline Lender, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Loan in an amount equal to such Defaulting LenderXxxxxx’s or Defaulting Lenders’ Applicable Percentage of the outstanding amount of such Swingline LoansLoan.
(b) To request a Swingline Loan, the Borrower Representative shall notify the Administrative Agent of such request by telephone submitting a Borrowing Request signed by the Borrower Representative (confirmed by telecopyhand delivery, telecopy or, if arrangements for doing so have been approved by the Administrative Agent, electronic communication), not later than 12:00 noon, New York City time, noon on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerBorrower Representative. The Swingline Lender shall make each Swingline Loan available to the Borrower Borrowers by means of a credit to the general a deposit account of the Borrower Borrowers with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.5(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, p.m. on the requested date of such Swingline Loan.
(ci) The Swingline Lender may by written may, at any time and from time to time in its sole and absolute discretion, request, on behalf of the Borrowers (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), on one (1) Business Days’ notice given to by the Administrative Agent Swingline Lender not later than 10:00 a.m.12:00 noon, New York City timethat each Lender make, on any Business Day require the Lenders and each Lender hereby agrees to acquire participations on such Business Day make, a Base Rate Loan in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Sections 2.2 and 2.3, without regard to the minimums and multiples specified therein, but subject to the aggregate unused Revolving Commitments and the conditions set forth in Section 4.2. The Swingline Lender shall furnish the Borrower Representative with a copy of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of Borrowing Request promptly after delivering such notice as provided above, to pay to the Administrative Agent, . Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swingline Loan) for the account of the Swingline LenderLender at the Administrative Agent’s office not later than 10:00 a.m. one (1) Business Day after the date of such Borrowing Request, whereupon, subject to clause (c)(ii) of this Section, each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrowers in such amount.
(ii) If for any reason any Swingline Loan cannot be refinanced by a Revolving Loan Borrowing in accordance with clause (c)(i) of this Section, the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender (or, if the Swingline Lender has not submitted a request for Base Rate Loans, the Swingline Lender may request by notice to the Administrative Agent) that each of the Lenders fund its participation in the relevant Swingline Loan and each Lender’s Applicable Percentage payment to the Administrative Agent for the account of the Swingline Lender pursuant to clause (c)(i) shall be deemed payment in respect of such participation. The Administrative Agent shall notify the Borrowers of any participations in any Swingline Loan funded pursuant to this clause (c)(ii), and thereafter payments in respect of such Swingline Loan or Loans. (to the extent of such funded participations) shall be made to the Administrative Agent and not to the Swingline Lender.
(iii) Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans and make Revolving Loans pursuant to this paragraph Section 2.4 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, counterclaim, recoupment, defense, deduction, abatement, withholding or reduction whatsoever; provided that, each Lender’s obligation to make Revolving Loans pursuant to this Section is subject to the conditions set forth in Section 2.16. 4.2.
(iv) Each Lender shall comply with its obligation obligations under this paragraph Section 2.4(c) by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.6 with respect to Loans made by such Lender (and Section 2.06 2.6 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower Borrowers (or other party on behalf of the BorrowerBorrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Xxxxxx’s participation was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due) shall be promptly remitted remitted, in like funds received, to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent Agent, in such funds, to the Lenders that shall have made their payments pursuant to this paragraph Section 2.4(c) and to the Swingline Lender, as their interests may appear; provided that 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 Borrower Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph Section 2.4 shall not relieve the Borrower Borrowers 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 Section 2.4 if an Event of Default had occurred and was continuing at the time such Swingline Loan was made and such Lender notified the Swingline Lender in writing, at least one (1) Business Day prior to the time such Swingline Loan was made, that such Event of Default had occurred and that such Lender would not acquire participations in Swingline Loans made while such Event of Default was continuing.
(v) The Swingline Xxxxxx may resign at any time by giving thirty (30) days’ prior notice of its resignation to the Administrative Agent, the Lenders and the Borrower Representative. Upon receipt of any such notice of resignation, a successor Swingline Lender (which shall be a Lender) may be appointed by the Required Lenders or the Borrower Representative, in each case, with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed). If no such successor shall have been so appointed by the Required Lenders or the Borrower Representative and shall have accepted such appointment within thirty (30) days after the retiring Swingline Lender gives notice of its resignation (or such earlier day as shall be agreed by the Borrower Representative), such resignation shall become effective on such thirtieth (30th) day, whether or not a successor has been appointed. After the resignation of a Swingline Xxxxxx xxxxxxxxx, the retiring Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement and the other Loan Documents with respect to Swingline Loans made by it prior to such resignation but shall not be required to make any additional Swingline Loans.
Appears in 1 contract
Samples: Credit Agreement (IBEX LTD)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans in Agreed Currencies to the Borrower Borrowers from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount Dollar Amount of outstanding Swingline Loans (other than Discretionary Swingline Loans) exceeding $10,000,000 15,000,000 (the “Committed Swingline Sublimit”), (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment or (iiiii) the sum of the total Revolving Credit Exposures plus the aggregate principal Dollar Amount of outstanding Competitive Loans exceeding the total Commitments; provided that that, notwithstanding the foregoing clause (i), the Swingline Lender may, in its sole discretion, make additional Swingline Loans in excess of the Committed Swingline Sublimit in an aggregate outstanding principal Dollar Amount not to exceed $15,000,000 at any time (the “Discretionary Swingline Sublimit” and such additional Swingline Loans, “Discretionary Swingline Loans”) so long as, after giving effect to any such Discretionary Swingline Loans, (x) the Swingline Lender’s Revolving Credit Exposure does not exceed its Commitment and (y) the sum of the total Revolving Credit Exposures plus the aggregate principal Dollar Amount of outstanding Competitive Loans does not exceed the total Commitments. 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 Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(ba) To request a Swingline Loan, the US Borrower shall notify the Administrative Agent of such request (i) in the case of a Swingline Borrowing denominated in Dollars, by telephone (confirmed by telecopy), not later than 12:00 noon2:00 p.m., New York City timeLocal Time, on the day of the proposed Swingline Loan or (ii) in the case of a Swingline Borrowing in denominated in an Agreed Currency other than Dollars, by irrevocable written notice (via a written Borrowing Request in a form approved by the Swingline Lender and signed by the US Borrower, promptly followed by telephonic confirmation of such request) not later than 10:00 a.m., Local Time, on the day of the proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount and currency of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the US Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower Borrowers by means of a credit to the general deposit account of the Borrower Borrowers with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the relevant applicable Issuing Bank) by 3:00 p.m., New York City timeLocal 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 10:00 a.m., New York City timeLocal Time, (i) in respect of Swingline Loans denominated in Dollars, on any Business Day and (ii) in respect of Swingline Loans denominated in an Agreed Currency other than Dollars, three (3) Business Days before the date of the proposed acquisition of participations, require the Lenders to acquire participations on such Business Day date in all or a portion of the Swingline Loans outstandingoutstanding in the applicable Agreed Currency of such Swingline Loans. Such notice shall specify the aggregate amount and the applicable Agreed Currency of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans and the applicable Agreed Currency of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay in the applicable Agreed Currency to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the US 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 Borrower Borrowers (or other party on behalf of the BorrowerBorrowers) 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 applicable Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Borrowers of any default in the payment thereof.
(c) The Swingline Lender may be replaced at any time by written agreement among the Company, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of the Swingline Lender. At the time any such replacement shall become effective, 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 replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of the Swingline Lender hereunder, the 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 its replacement, but shall not be required to make additional Swingline Loans.
(d) Subject to the appointment and acceptance of a successor Swingline Lender, the Swingline Lender may resign as Swingline Lender at any time upon thirty days’ prior written notice to the Administrative Agent, the Company and the Lenders, in which case, the Swingline Lender shall be replaced in accordance with Section 2.05(d) above.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender Lender, in reliance on the agreements of the Revolving Lenders set forth in this Section, agrees to make Swingline Loans under the Revolving Commitments to the Borrower in Dollars from time to time on any Business Day during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or the Swingline Sublimit, (ii) the sum of total Revolving Credit Exposure exceeding the total Revolving Commitments then in effect, or (iii) Revolving Credit Exposures Exposure of any Revolving Lender exceeding the total Commitmentssuch Lender’s Revolving Commitment; provided that 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to Each Swingline Loan shall be in an amount that is not less than $1,000,000. Swingline Loans shall be Base Rate Loans. Immediately upon the contrary contained in this Section 2.04 or elsewhere in this Agreementmaking of a Swingline Loan by the Swingline Lender, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Loan in an amount equal to such Defaulting Revolving Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding amount of such Swingline LoansLoan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone submitting a Borrowing Request signed by the Borrower (confirmed by telecopyhand delivery, telecopy or, if arrangements for doing so have been approved by the Administrative Agent, electronic communication), not later than 12:00 noon, New York City time, noon on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general a deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.5(e), by remittance to the relevant applicable Issuing Bank) by 3:00 p.m., New York City time, p.m. on the requested date of such Swingline Loan.
(ci) The Swingline Lender may by written may, at any time and from time to time in its sole and absolute discretion, request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), on one Business Day’s notice given to by the Administrative Agent Swingline Lender not later than 10:00 a.m.12:00 noon, New York City timethat each Revolving Lender make, on any Business Day require the Lenders and each Revolving Lender hereby agrees to acquire participations on make, a Base Rate Loan in an amount equal to 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Revolving Lender’s Applicable Percentage of the amount of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Sections 2.2 and 2.3, without regard to the minimums and multiples specified therein, but subject to the aggregate unused Revolving Commitments and the conditions set forth in Section 4.2. The Swingline Lender shall furnish the Borrower with a copy of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of Borrowing Request promptly after delivering such notice as provided above, to pay to the Administrative Agent, . Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swingline Loan) for the account of the Swingline LenderLender at the Administrative Agent’s office not later than 10:00 a.m. one Business Day after the date of such Borrowing Request, whereupon, subject to clause (c)(ii) of this Section, each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.
(ii) If for any reason any Swingline Loan cannot be refinanced by a Revolving Borrowing in accordance with clause (c)(i) of this Section, the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender (or, if the Swingline Lender has not submitted a request for Base Rate Loans, the Swingline Lender may request by notice to the Administrative Agent) that each of the Revolving Lenders fund its participation in the relevant Swingline Loan and each Revolving Lender’s Applicable Percentage payment to the Administrative Agent for the account of the Swingline Lender pursuant to clause (c)(i) shall be deemed payment in respect of such participation. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan funded pursuant to this clause (c), and thereafter payments in respect of such Swingline Loan or Loans. (to the extent of such funded participations) shall be made to the Administrative Agent and not to the Swingline Lender.
(iii) Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans and make Revolving Loans pursuant to this paragraph Section 2.4 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, counterclaim, recoupment, defense, deduction, abatement, withholding or reduction whatsoever; provided that, each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section is subject to the conditions set forth in Section 2.16. 4.2.
(iv) Each Revolving Lender shall comply with its obligation obligations under this paragraph Section 2.4(c) by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.6 with respect to Loans made by such Revolving Lender (and Section 2.06 2.6 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender’s participation was outstanding and funded and, in the case of principal and interest payments, to reflect such Revolving Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due) shall be promptly remitted remitted, in like funds received, to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent Agent, in such funds, to the Revolving Lenders that shall have made their payments pursuant to this paragraph Section 2.4(c) and to the Swingline Lender, as their interests may appear; provided that 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph Section 2.4 shall not relieve the Borrower of any default in the payment thereof.
(v) Any Swingline Lender may resign at any time by giving 30 days’ prior notice of its resignation to the Administrative Agent, the Lenders and the Borrower. Upon receipt of any such notice of resignation, a successor Swingline Lender (which shall be a Lender) may be appointed by the Required Lenders or the Borrower, in each case, with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed). If no such successor shall have been so appointed by the Required Lenders or the Borrower and shall have accepted such appointment within 30 days after the retiring Swingline Lender gives notice of its resignation (or such earlier day as shall be agreed by the Borrower), such resignation shall become effective on such thirtieth day, whether or not a successor has been appointed. After the resignation of a Swingline Lender hereunder, the retiring Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement and the other Loan Documents with respect to Swingline Loans made by it prior to such resignation but shall not be required to make any additional Swingline Loans.
Appears in 1 contract
Samples: Credit Agreement (Globant S.A.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make swingline loans (“Swingline Loans Loans”) to the Borrower from time to time during on and after the Availability PeriodClosing Date and until the Latest Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding not to exceed $15,000,000; provided that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a any Swingline Loan to refinance an any outstanding Swingline Loan and (ii) after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall not exceed the Total Revolving Credit Commitment. Each Swingline 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 Lender; provided that, notwithstanding the foregoing, any Swingline Loan may be in an aggregate amount that is (1) equal to the entire unused balance of the aggregate unused Revolving Credit Commitments or (2) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(d). Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Swingline Loans may borrowbe borrowed, prepay prepaid and reborrow Swingline Loansreborrowed. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Swingline Lender (with a copy to the Administrative Agent Agent) of such request by telephone (confirmed delivery of a written Borrowing Request, appropriately completed and signed by telecopy)a Responsible Officer of the Borrower, not later than 12:00 noon, New York City time, 1:00 p.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower on the same Business Day by means of a credit to the general deposit account designated in the related Borrowing Request or otherwise in accordance with the instructions of the Borrower with the Swingline Lender (orincluding, in the case of a Swingline Loan made to finance the reimbursement of an any LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, 12:00 p.m. on any Business Day require the Revolving Lenders to acquire participations purchase a participation on such the 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 Revolving Lender, specifying in such notice 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, subject to Section 2.16. Each Revolving Lender shall comply with its obligation under this paragraph by effecting a 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 LendersRevolving Lenders pursuant to this Section 2.04(b)), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations participation in any Swingline Loan acquired pursuant to this paragraphSection 2.04(b), and thereafter payments any payment 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 Borrower (or other party on behalf of the Borrower) 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; , and any such amounts amount received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders each Revolving Lender that shall have has made their payments its payment 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 to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded funded to the Borrower for any reason, such payment shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrower. The purchase of participations in a Swingline Loan pursuant to this paragraph Section 2.04(b) shall not relieve the Borrower of any default in the payment thereof.
(c) If any Revolving Lender fails to make available to the Administrative Agent (for the 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 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 in accordance with banking industry rules on interbank compensation. A certificate of the Swingline Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amount owing under this clause (c) shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (First Watch Restaurant Group, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 15,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total CommitmentsMaximum Availability; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan; 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 Defaulting Lender or Deteriorating Lender hereunder, unless the Swingline Lender has entered into satisfactory arrangements with the Borrower or such Lender to eliminate the Swingline Lender’s risk with respect to such Lender. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the ABL Administrative Agent of such request in writing (delivered by telephone (confirmed by telecopyhand or facsimile), not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. All Swingline Loans shall be Base Rate Borrowings. The ABL Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender Funding Account (or, in the case of a Swingline repayment of another Loan made to finance the reimbursement of an LC Disbursement or fees or expenses as provided in by Section 2.05(e2.10(b), by remittance to the relevant Issuing BankABL Administrative Agent to be distributed to the Lenders) by 3:00 2:00 p.m., New York City time, on the requested date of such Swingline Loan.
(cb) Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement (as defined below) has been requested with respect to such Swingline Loan, each 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 Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.may, New York City at any time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loansfund their participations. Each 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 reduction or the subsequent termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 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 Lenders), and the ABL Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The ABL Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphclause, and thereafter payments in respect of such Swingline Loan shall be made to the ABL Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the 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 to the ABL Administrative Agent; any such amounts received by the ABL Administrative Agent shall be promptly remitted by the ABL Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph clause 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 ABL Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph clause shall not relieve the Borrower of any default in the payment thereof.
(c) The ABL 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 ABL Administrative Agent elects, by notifying the Lenders of such requested Settlement by facsimile or e-mail no later than 12:00 noon New York 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 ABL Administrative Agent, to such account of the ABL Administrative Agent as the ABL Administrative Agent may designate not later than 2:00 p.m., New York 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 ABL Administrative Agent shall be applied against the amounts of the Swingline Lender’s Swingline Loans and together with the 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 ABL Administrative Agent by any Lender on such Settlement Date, the Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon as specified in Section 2.07.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Orchard Supply Hardware Stores Corp)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make swingline loans (“Swingline Loans Loans”) to the Borrower from time to time during on and after the Availability PeriodClosing Date and until the Latest Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding not to exceed $15,000,000; provided that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a any Swingline Loan to refinance an any outstanding Swingline Loan and (ii) after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall not exceed the Total Revolving Credit Commitment. Each Swingline 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 Lender; provided that, notwithstanding the foregoing, any Swingline Loan may be in an aggregate amount that is (1) equal to the entire unused balance of the aggregate unused Revolving Credit Commitments or (2) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(d). Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Swingline Loans may borrowbe borrowed, prepay prepaid and reborrow Swingline Loansreborrowed. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Swingline Lender (with a copy to the Administrative Agent Agent) of such request by telephone (confirmed delivery of a written Borrowing Request, appropriately completed and signed by telecopy)a Responsible Officer of the Borrower, not later than 12:00 noon, New York City time, 1:00 p.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower on the same Business Day by means of a credit to the general deposit account designated in the related Borrowing Request or otherwise in accordance with the instructions of the Borrower with the Swingline Lender (orincluding, in the case of a Swingline Loan made to finance the reimbursement of an any LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, 12:00 p.m. on any Business Day require the Revolving Lenders to acquire participations purchase a participation on such the 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 Revolving Lender, specifying in such notice 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 LenderXxxxxx’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, subject to Section 2.16. Each Revolving Lender shall comply with its obligation under this paragraph by effecting a 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 LendersRevolving Lenders pursuant to this Section 2.04(b)), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations participation in any Swingline Loan acquired pursuant to this paragraphSection 2.04(b), and thereafter payments any payment 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 Borrower (or other party on behalf of the Borrower) 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; , and any such amounts amount received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders each Revolving Lender that shall have has made their payments its payment 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 to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded funded to the Borrower for any reason, such payment shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrower. The purchase of participations in a Swingline Loan pursuant to this paragraph Section 2.04(b) shall not relieve the Borrower of any default in the payment thereof.
(c) If any Revolving Lender fails to make available to the Administrative Agent (for the 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 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 in accordance with banking industry rules on interbank compensation. A certificate of the Swingline Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amount owing under this clause (c) shall be conclusive absent manifest error.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during on and after the Availability Period, date hereof and until the earlier of the Maturity Date and the termination of the Commitments in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of all outstanding Swingline Loans exceeding $10,000,000 35,000,000, or (ii) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanTotal Commitment then in effect. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay repay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender Loans shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline ABR Loans.
(b) To request a Swingline Loan, Whenever the Borrower desires that the Swingline Lender make Swingline Loans it shall notify give the Administrative Agent of such request Swingline Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by telephone (confirmed by telecopy), the Swingline Lender not later than 12:00 noon1:00 P.M., New York City time, on the day proposed borrowing date), specifying (i) the amount of a proposed the Swingline Loan. Each such notice shall Loan to be irrevocable borrowed and shall specify (ii) the requested borrowing date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available Day prior to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(eMaturity Date), by remittance to the relevant Issuing Bank) by . Not later than 3:00 p.m.P.M., New York City time, on the requested borrowing date specified in a notice in respect of Swingline Loans, the Swingline Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the Swingline Loan to be made by the Swingline Lender. The Administrative Agent shall make the proceeds of such Swingline LoanLoan available to the Borrower on such borrowing date by depositing such proceeds in the account of the Borrower with the Administrative Agent on such borrowing date in immediately available funds.
(c) The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender may by written to act on its behalf), on one Business Day’s notice given to by the Administrative Agent not Swingline Lender no later than 10:00 a.m.12:00 Noon, New York City time, on any Business Day require request each Lender to make, and each Lender hereby agrees to make, a Revolving Loan, in an amount equal to such Lender’s Pro Rata Percentage of the Lenders to acquire participations on such Business Day in all or a portion aggregate amount of the Swingline Loans outstanding. Such notice shall specify (the aggregate amount of “Refunded Swingline Loans in which Lenders will participate. Promptly upon receipt Loans”) outstanding on the date of such notice, to repay the Administrative Agent will give notice thereof to each Swingline Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Pro Rata Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 2.02(c) with respect to Loans made by such Lender (and Section 2.06 2.02(c) shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts Revolving Loans so received by the Administrative Agent shall be promptly remitted immediately made available by it to the Swingline Lender for application by the Administrative Agent Swingline Lender to the Lenders that repayment of the Refunded Swingline Loans.
(d) If prior to the time a Revolving Loan would have otherwise been made pursuant to Section 2.05(c), one of the events described in clauses (g) or (h) of Article VII shall have occurred and be continuing with respect to the Borrower or if for any other reason, as determined by the Swingline Lender in its sole discretion, Revolving Loans may not be made their payments as contemplated by Section 2.05(c), each Lender shall, on the date such Revolving Loan was to have been made pursuant to this paragraph the notice referred to in Section 2.05(c), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to (i) such Lender’s Pro Rata Percentage times (ii) the sum of the aggregate principal amount of Swingline Loans then outstanding that were to have been repaid with such Revolving Loans.
(e) Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided, however, that in the event that such payment received by the Swingline Lender is required to be returned, such Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.
(f) Each Lender’s obligation to make the Loans referred to in Section 2.05(c) and to purchase participating interests pursuant to Section 2.05(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Lender or the Borrower may have against the Swingline Lender, as their interests may appear; provided that the Borrower or any such payment so remitted shall be repaid other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the Swingline other conditions specified in Article W, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, a Guarantor or any other Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofforegoing.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Janus Capital Group Inc)
Swingline Loans. (ai) Subject to the terms and conditions set forth herein, the Swingline Lender Lender, in reliance on the agreements of the Lenders set forth in this Section, agrees to make Swingline Loans to the Borrower from time to time on any Business Day during the Availability Commitment Period, in an aggregate principal amount not to exceed at any time outstanding that will not result in the Swingline Commitment; provided that, after giving effect to any Swingline Loan, (i1) the aggregate principal amount Total Extensions of outstanding Swingline Loans exceeding $10,000,000 or Credit shall not exceed the Total Commitments and (ii2) the sum Extensions of the total Revolving Credit Exposures exceeding the total Commitmentsof any Lender shall not exceed such Lender’s Commitment; provided provided, further, 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to Immediately upon the contrary contained in this Section 2.04 or elsewhere in this Agreementmaking of a Swingline Loan by the Swingline Lender, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing Loan in an amount equal to such Defaulting Lender’s or Defaulting Lenders’ Applicable Revolving Credit Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(cii) The Borrower shall repay to the Swingline Lender may (or, to the extent required by written notice given Section 2.3(c), to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Lenders) each Swingline Loan made by the Swingline Lender on the earlier to occur of (i) the date five Business Days after such Swingline Loan is made and (ii) the Termination Date.
(iii) Each Swingline Loan shall be a Base Rate Loan.
(iv) At any time that there shall exist a Defaulting Lender, immediately upon the request of the Swingline Lender, such Lender’s Applicable Percentage of such the Borrower shall repay the outstanding Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of in an amount sufficient to eliminate any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments Fronting Exposure 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofLoans.
Appears in 1 contract
Samples: Revolving Credit Agreement (Iconix Brand Group, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, upon the Swingline Lender agrees to make Swingline Loans to the request of Borrower from time to time during the Availability Commitment Period, in an aggregate principal amount at any time outstanding that the Swingline Lender may, but will not result in be obligated to, make swingline loans (ithe “Swingline Loans”) to Borrower; notwithstanding the fact that such Swingline Loans, when aggregated with the Percentage Share of the Revolving Loans and LC Obligations of the Lender acting as Swingline Lender, may exceed such Lender’s Revolving Loan Commitment; provided, however that the (y) aggregate principal amount of outstanding Swingline Loans exceeding at any time outstanding shall not exceed $10,000,000 or 10,000,000, and (iiz) the sum of the total Revolving Credit Exposures exceeding the total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within Notwithstanding the foregoing limits and subject to the terms and conditions set forth hereinforegoing, the Borrower may borrow, prepay aggregate outstanding combined principal balance of the Revolving Loans and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender Loans outstanding at any time together with all LC Obligations shall not be obligated to make any exceed the Aggregate Commitment. Each Swingline Loan (i) shall be a Base Rate Loan, (ii) shall be made in the minimum amount of $100,000.00 and integral multiples thereof or in the amount of any unused portion of the Aggregate Commitment, and (iii) may be repaid and, so long as no Default or Event of Default exists hereunder, reborrowed, at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and option of the Borrower to eliminate in accordance with the provisions hereof. There shall be no further Borrowings under Swingline Lender’s risk with respect to Loans after the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline LoansMaturity Date.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m.9:00 a.m. Houston, New York City time, Texas time on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage Share of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Share of such Swingline Loan or Loans. Each 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, Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 2.2 with respect to Loans made by such Lender (and Section 2.06 2.2 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(c) Whenever the Borrower requests a Swingline Loan it must deliver to Agent a Borrowing Notice as described in Section 2.2.
(d) The Borrower’s obligation to repay the Swingline Loans made by the Swingline Lender shall be evidenced by a revolving credit promissory note duly executed and delivered by the Borrower to the Swingline Lender substantially in the form of Exhibit 2.16 hereto (the “Swingline Note”), and the Swingline Note shall (i) be payable to the order of the Swingline Lender and be dated as of the Closing Date, (ii) be in a stated principal amount equal to $10,000,000, (iii) prior to the Maturity Date, be payable as provided herein and mature on the Maturity Date, (iv) bear interest as provided in this Section 2.16 and (v) be entitled to the benefits of this Agreement and the other Loan Documents.
(e) All outstanding principal (and any accrued, unpaid interest) of any Swingline Loan will be due and payable on the earliest of (i) the Maturity Date, (ii) the first date after such Swingline Loan is made that is the last day of a calendar month and is at least two Business Days after such Swingline Loan is made, and (iii) the first date that a Revolving Loan is made after the date of such Swingline Loan.
(f) The unpaid principal amount of each Swingline Loan shall bear interest at an annual rate equal to the Adjusted Base Rate in effect from time to time.
(g) The obligation of the Swingline Lender to make Swingline Loans to the Borrower is subject to the same conditions precedent for the making of Loans under Section 4.2.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make (i) Global Swingline Loans to the any Borrower from time to time during the Availability PeriodPeriod in Dollars, in an aggregate principal amount at any time outstanding that will not result in (ix) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 the Swingline Loan Sublimit or (iiy) the sum aggregate principal amount of the total 2020 Extended Global Revolving Credit Exposures exceeding the total 2020 Extended Global Revolving Commitments and (ii) U.S. Swingline Loans to the Domestic Subsidiary Borrowers from time to time during the Availability Period in Dollars, in an aggregate principal amount at any time outstanding that will not result in (x) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Loan Sublimit or (y) the aggregate principal amount of the total 2020 Extended U.S. Revolving Exposures exceeding the total 2020 Extended U.S. Revolving Commitments; provided that (I) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and (II) the Swingline Lender shall not be required to make any Swingline Loan under any Revolving Facility to the extent the aggregate principal amount of the Revolving Loans made by the Lender acting as Swingline Lender that are then outstanding under such Revolving Facility, when aggregated with aggregate principal amount of Swingline Loans under such Revolving Facility, would exceed the amount of such Lender’s Revolving Commitment under such Revolving Facility. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower Agent shall notify the Administrative Agent of such request by telephone (confirmed by telecopytelecopy or transmission by electronic communication), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be in the form attached hereto as Exhibit B-5 and shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice of a request for a Swingline Loan Borrowing received from the applicable Borrower. The Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a credit to the general deposit account of the such Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank or, to the extent that the Applicable Participants have made payments pursuant to Section 2.05(e) to reimburse the applicable Issuing Bank, to such Applicable Participants and such Issuing Bank as their interests may appear) 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 10:00 a.m., New York City time, on any Business Day require the Lenders Applicable Participants to acquire participations on such Business Day in all or a portion of the Global Swingline Loans outstanding or U.S. Swingline Loans outstanding, as applicable. Such Each such notice shall specify the aggregate amount of Swingline Loans in which Lenders the Applicable Participants will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each LenderApplicable Participant, specifying in such notice such LenderApplicable Participant’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender Applicable Participant 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 LenderApplicable Participant’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender Applicable Participant 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each Lender Applicable Participant 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 Applicable Participant (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the LendersApplicable Participants), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the LendersApplicable Participants. The Administrative Agent shall notify the 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 applicable Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders Applicable Participants 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 a Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the any Borrower of any default in the payment thereof.
Appears in 1 contract
Samples: Restatement Agreement (Aptiv PLC)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total 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 Borrower may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s 's risk with respect to the Defaulting Lender’s 's or Defaulting Lenders’ ' participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s 's or Defaulting Lenders’ ' Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant 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 10:00 a.m., New York City time, on any Business Day require the 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 Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s 's Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s 's Applicable Percentage of such Swingline Loan or Loans. Each 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. Each 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 Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the 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 Borrower (or other party on behalf of the 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 to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 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 Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to may in its discretion, and in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.05, make available Swingline Loans to the Borrower Borrowers from time to time during the Availability Period, Period in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 45,000,000 or (ii) the sum total Revolving Exposures exceeding the lesser of the total Revolving Credit Exposures exceeding Commitments and the total CommitmentsBorrowing Base; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Notwithstanding anything herein to the contrary, the Swingline Lender shall not be obligated to fund the percentage of any Swingline Loan allocable to any Impacted Lender and with respect to any portion of a Swingline Loan so not funded, such Impacted Lender shall not have any obligation to make Revolving Loans or to purchase participation interests in accordance with Section 2.05(c) and any pro rata calculations related to such Swingline Loans for purposes thereof shall disregard such Impacted Lender. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall not be obligated to make any Swingline Loan at a time when a Lender is a Defaulting Lender unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swingline Loans.
(b) To request a Swingline Loan, the Borrower Agent shall notify the Administrative Agent of such request by telephone (confirmed by telecopyfacsimile), not later than 12:00 p.m. (noon), New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerBorrower Agent. The Swingline Lender shall make each Swingline Loan available to the Borrower Borrowers by means of a credit to the general deposit account Funding Account or otherwise in accordance with the instructions of the Borrower with the Swingline Lender Agent (orincluding, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the relevant applicable Issuing Bank, and in the case of repayment of another Loan or fees or expenses as provided by Section 2.18(c), by remittance to the Agent to be distributed to the Lenders) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(b) To facilitate administration of the Revolving Loans, the Revolving Lenders and the Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by any Borrower) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among them as to the Revolving Loans and the Swingline Loans and the Protective Advances shall take place on a periodic basis in accordance with this clause (b). The Agent shall request settlement (a “Settlement”) with the Revolving Lenders on at least a weekly basis, or on a more frequent basis if so determined by the Agent, (A) on behalf of the Swingline Lender, with respect to each outstanding Swingline Loan and (B) with respect to collections received, in each case, by notifying the Revolving Lenders of such requested Settlement by telecopy, telephone, or other similar form of transmission, of such requested Settlement, no later than 12:00 noon, New York City Time, on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender (other than the Swingline Lender, in the case of Swingline Loans) shall make the amount of such Revolving Lender’s Applicable Percentage of the outstanding principal amount of the Swingline Loans with respect to which Settlement is requested available to the Agent, to such account of the Agent as the Agent may designate, not later than 3:00 p.m., New York City time, on the Settlement Date applicable thereto, which may occur before or after the occurrence or during the continuation of a Default or an Event of Default and whether or not the applicable conditions precedent set forth in Article IV have then been satisfied without regard to the any minimum amount specified therein. Such amounts made available to the Agent shall be applied against the amounts of the applicable Swingline Loan and, together with the portion of such Swingline Loan representing the Swingline Lender’s pro rata share thereof, shall constitute Revolving Loans of the Revolving Lenders. If any such amount is not made available to the Agent by any Revolving Lender on the Settlement Date applicable thereto, the Agent shall, on behalf of the Swingline Lender with respect to each outstanding Swingline Loan, be entitled to recover such amount on demand from such Revolving Lender together with interest thereon at the Federal Funds Effective Rate for the first three days from and after the Settlement Date and thereafter at the interest rate then applicable to Revolving Loans. Between Settlement Dates the Agent may pay over to the Swingline Lender any payments received by the Agent, which in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Loans, for application to the Swingline Lender’s Revolving Loans or Swingline Loans. If, as of any Settlement Date, collections received since the then immediately preceding Settlement Date have been applied to the Swingline Lender’s Revolving Loans, the Swingline Lender shall pay to the Agent for the accounts of the Revolving Lenders, to be applied to the outstanding Revolving Loans of such Revolving Lenders, an amount such that each Revolving Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Applicable Percentage of the Revolving Loans. During the period between Settlement Dates, the Swingline Lender with respect to Swingline Loans, the Agent with respect to Protective Advances and each Revolving Lender with respect to its Revolving Loans shall be entitled to interest thereon at the applicable rate or rates payable under this Agreement.
(c) Upon the making of a Swingline Loan by the Swingline Lender, each Revolving Lender shall be deemed, without further action by any party hereto, unconditionally and irrevocably to have purchased from the Swingline Lender without recourse or warranty, an undivided interest and participation in such Swingline Loans in proportion to its Applicable Percentage. The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.1:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire fund their respective 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 participatefund. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or 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 Revolving Lender’s Applicable Percentage of such Swingline Loan or 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 reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever, subject to Section 2.16. 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), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower Agent of any funded 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 Borrower Borrowers (or other party on behalf of the 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 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 any Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Borrowers of any default in the payment thereof.
Appears in 1 contract
