The Swingline Loans. (i) The Swingline Lender agrees, on the terms and conditions hereinafter set forth, to make Swingline Loans to the Borrower on any Business Day during the period from the Closing Date to the Revolving Termination Date, in an aggregate amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) each Swingline Loan shall be made and maintained as a Base Rate Loan and (y) that after giving effect to any Swingline Borrowing, the aggregate principal amount of all outstanding Swingline Loans, together with the aggregate principal amount of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not exceed the Aggregate Revolving Commitment. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans. (ii) The Swingline Lender shall not be responsible for or liable to any Lender for determining whether (A) any representation or warranty of the Borrower in connection with any request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from the making of any such Swingline Loan; provided, however, that the Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived. (iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan shall be deemed to utilize only the Revolving Commitment of the Swingline Lender but not any other Lender (it being understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender). (iv) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the RL Lenders that its outstanding Swingline Loans shall be funded with a Revolving Borrowing (provided that each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided in Section 9.02), in which case a Revolving Borrowing constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a), (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its obligation to make the payment to be made by it.
Appears in 2 contracts
Samples: Credit Agreement (Globe Manufacturing Corp), Credit Agreement (Globe Manufacturing Corp)
The Swingline Loans. (i) The Swingline Lender agrees, on the terms and conditions hereinafter set forth, to make Swingline Loans to the Borrower on any Business Day during the period from the Closing Effective Date to the Revolving Termination Date, in an aggregate amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) each Swingline Loan shall be made and maintained as a Base Rate Loan and (y) that after giving effect to any Swingline Borrowing, the aggregate principal amount of all outstanding Swingline Loans, together with the aggregate principal amount of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not exceed the lesser of the Aggregate Revolving CommitmentCommitment and the Revolving Availability. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Swingline Loans under this Section 2.01(d2.01(b), repay pursuant to Section 2.08(b) or prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d2.01(b). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans.
(ii) The Swingline Lender shall not be responsible for or liable to any Lender for determining whether (A) any representation or warranty of the Borrower in connection with any request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from the making of any such Swingline Loan; provided, however, that the Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Majority Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan shall be deemed to utilize only the Revolving Commitment of the Swingline Lender (but not any other Lender Lender) by an amount equal to such Swingline Loan (it being understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender).
(iv) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the RL Lenders that its outstanding Swingline Loans shall be funded with a Revolving Borrowing of Revolving Loans (provided that each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.01(f9.01(e) or 9.01(g9.01(f) or upon the exercise of any of the remedies provided in Section 9.02), in which case a Revolving Borrowing of Revolving Loans constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a), (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment PercentagesPercent ages, provided that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its obligation to make the payment to be made by it.
Appears in 1 contract
The Swingline Loans. (i) The Swingline Lender agrees, on Subject to the terms and conditions hereinafter set forthforth herein, to the Swingline Lender may, in its sole discretion and in reliance upon the agreements of the other Lenders set forth in this Section 2.04, make loans in Dollars (each such loan, a “Swingline Loans Loan”) to the Borrower Company from time to time on any Business Day during the period from the Closing Date to the Revolving Termination Date, Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swingline AmountSublimit; provided, however, (x) each that such Swingline Loan shall be made Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and maintained L/C Obligations of the Lender acting as a Base Rate Loan and (y) Swingline Lender, may not exceed the amount of such Lender’s Commitment; provided, further, that after giving effect to any Swingline BorrowingLoan, (i) the aggregate principal amount of all outstanding Swingline Loans, together with the aggregate principal amount of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), Total Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swingline Loans shall not exceed such Lender’s Commitment, and provided, further, that the Company shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan. Within such the foregoing limits, and subject to the other terms and conditions hereof, the Borrower Company may borrow Swingline Loans under this Section 2.01(d)borrow, prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans.
(ii) The Swingline Lender shall not be responsible for or liable to any Lender for determining whether (A) any representation or warranty of the Borrower in connection with any request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from the making of any such Swingline Loan; provided, however, that the Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan shall be deemed to utilize only the Revolving Commitment of the Swingline Lender but not any other Lender (it being understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender).
(iv) On any Business Day, the Swingline Lender maymake, in its sole discretion, give notice to the RL Lenders that its outstanding Swingline Loans Loans, under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swingline Loan shall be funded with a Revolving Borrowing (provided that Base Rate Loan. Immediately upon the making of a Swingline Loan, each such notice Lender shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided in Section 9.02), in which case a Revolving Borrowing constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentageto, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably and unconditionally agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a)to, (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share a risk participation in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, Loan in an amount equal to the extent attributable to product of such Lender’s Applicable Percentage times the purchased assignmentamount of such Swingline Loan. For the avoidance of doubt, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure making of any RL Lender to pay such amount to Swingline Loan by the Swingline Lender shall not relieve any other RL Lender be in the sole and absolute discretion of its obligation to make the payment to be made by itSwingline Lender.
Appears in 1 contract
The Swingline Loans. Unless otherwise specifically requested by Borrowers in writing, Swingline Lender may (but shall not be obligated to) fund any requested Base Rate Loan with a Swingline Loan, but only if (i) The Swingline Lender agrees, on the terms and conditions hereinafter set forth, to make Swingline Loans to the Borrower on any Business Day during the period from the Closing Date to the Revolving Termination Date, in an aggregate amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) each such Swingline Loan shall is otherwise permitted to be made and maintained as a hereunder; (ii) such Base Rate Loan and is not specifically required to be made by all Lenders hereunder, (yiii) that no Lender is a Defaulting Lender at such time, unless Swingline Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to Swingline Lender (in its sole discretion) with Borrowers or such Lender to eliminate such Swingline Lender’s actual or potential Fronting Exposure (after giving effect to any Section 4.3(d)) with respect to the Defaulting Lender; and (iv) after giving effect to such Swingline BorrowingLoan, the aggregate principal amount of all outstanding Swingline Loans, together with the aggregate principal amount of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall would not exceed the Aggregate Revolving CommitmentSwingline Sublimit. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans.
(ii) The Swingline Lender shall not be responsible for or liable to any Lender for determining whether (A) any representation or warranty of the Borrower in connection with any request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from the making of any such Swingline Loan; provided, however, that the Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a)constitute a Loan for all purposes, each Swingline Loan except that payments thereon shall be deemed made to utilize only the Revolving Commitment of the Swingline Lender but not any other Lender (it being understood that the aggregate principal amount for its own account. The obligation of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender).
(iv) On any Business Day, the Swingline Lender may, in its sole discretion, give notice Borrowers to the RL Lenders that its outstanding repay Swingline Loans shall be funded with a Revolving Borrowing (provided that each such notice evidenced by the records of Swingline Lender. On the Closing Date, Borrowers shall be deemed execute and deliver to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided in Section 9.02), in which case a Revolving Borrowing constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing a promissory note in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with Swingline Sublimit in the minimum borrowing denominations set forth in Section 2.03(a), form of Exhibit J (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitationsuch promissory note, as a result of the commencement of a proceeding under same may be amended, restated, supplemented, or otherwise modified from time to time, the Bankruptcy Code in respect of the Borrower“Swingline Note”), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its obligation to make the payment to be made by it.
Appears in 1 contract
The Swingline Loans. (ia) The Swingline Lender agrees, on Subject to the terms and conditions hereinafter set forthof this Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower on any Business Company and its Eligible Subsidiaries (as specified in the Borrowing Request with respect thereto) from time to time from and including the date hereof to and including the Banking Day during next preceding the period from the Closing Date to the Revolving Termination Date, in an aggregate principal amount not to exceed at any one time outstanding up to but not exceeding the Swingline Amount; providedCommitment, however, (x) each provided that the Swingline Loan shall be made and maintained as a Base Rate Loan and (y) that after giving effect to any Swingline Borrowing, Loans outstanding plus the aggregate principal amount of all outstanding Swingline Loans, together with the aggregate principal amount of all outstanding Revolving Loans of the Swingline Lender plus the aggregate amount of all outstanding Letter Letters of Credit Obligations (exclusive Usage of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not exceed the Aggregate Revolving Commitment. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make at any time exceed the Commitment of The Chase Manhattan Bank and provided further that the aggregate amount of Revolving Loans outstanding plus the Letters of Credit Usage plus Swingline Loans shall not at any time exceed the aggregate Commitments of the Banks. Each Loan under this Section 2.2 shall be made by the Swingline Lender. The Swingline Loans may be outstanding as Variable Rate Loans or Eurocurrency Loans (each a time when "type" of Loan). Eurocurrency Loans may be denominated in Dollars or in one or more Alternative Currencies, and all Variable Rate Loans shall be denominated only in Dollars. Subject to the terms hereof, the Borrowers may borrow, repay or prepay and reborrow Swingline Loans hereunder prior to the Termination Date.
(b) Any Swingline Loans may be made in the Alternative Currency specified in the applicable Borrowing Request given pursuant to Section 2.8 in an amount equal to the Alternative Currency Equivalent of the Dollar amount specified in such Borrowing Request, as determined by the Agent as of the Denomination Date for such Borrowing (which determination shall be conclusive absent manifest error).
(c) Each Bank irrevocably agrees that if a Lender Default exists unless Borrower fails to repay a Swingline Loan to 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 Lenders' participation in such Swingline Loans, when due (including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans.
(ii) The Swingline Lender shall not be responsible for or liable to any Lender for determining whether (A) any representation or warranty of the Borrower in connection with any request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from the making of any such Swingline Loan; provided, however, that the Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a Default or upon an Event of Default exists and is continuing until acceleration of such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iiiLoans) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), then each Swingline Loan shall be deemed to utilize only the Revolving Commitment of the Swingline Lender but not any other Lender (it being understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender).
(iv) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the RL Lenders that its outstanding Swingline Loans shall be funded with a Revolving Borrowing (provided that each such notice Bank shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided purchased participations in Section 9.02), in which case a Revolving Borrowing constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a), (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the in proportion to their respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its obligation to make the payment to be made by itCommitments.
Appears in 1 contract
Samples: Credit Agreement (Macdermid Inc)
The Swingline Loans. (i) The Swingline Lender Bank agrees, on the terms and conditions hereinafter set forth, to make Swingline Loans to the any Borrower on any Business Day during the period from the Closing Effective Date to the Revolving Termination Date, in an aggregate amount not to exceed at any time outstanding the Swingline Amount; Amount (provided, however, (x) each that on the Effective Date the Swingline Bank shall be permitted to make a Swingline Loan up to an amount equal to the Aggregate Commitment provided that any Interest Period related thereto shall be made and maintained as a Base Rate Loan and (y) not exceed one week); provided further, however, that after giving effect to any Swingline Borrowing, the aggregate principal amount of all outstanding Swingline Loans, Loans together with (x) the aggregate principal amount of all outstanding Revolving Loans Committed Loans, plus (y) the aggregate principal amount of all outstanding Bid Loans, plus (z) all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans)Obligations, shall not exceed the Aggregate Revolving Commitment. Within such limits, and subject to the other terms and conditions hereof, the each Borrower may borrow Swingline Loans under this Section 2.01(d2.01(b), repay pursuant to Section 2.11(b) or prepay pursuant to Section 2.06 2.09 or 2.07(a2.10(a) and reborrow pursuant to this Section 2.01(d2.01(b). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans.
(ii) The Swingline Lender Bank shall not be responsible for or liable to any Lender Bank for determining whether (A) any representation or warranty of the any Borrower in connection with any request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from the making of any such Swingline Loan; provided, however, that the Swingline Lender Bank shall not make any Swingline Loan after receiving a written notice from the any Borrower or the Required Lenders any Bank stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender Bank shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan shall be deemed to utilize only the Revolving Commitment of the Swingline Lender but not any other Lender (it being It is understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender)Bank.
(iv) On any Business DayUpon demand by the Swingline Bank, the Swingline Lender may, relevant Borrower shall promptly borrow Committed Loans from all the Banks pursuant to Section 2.01(a) in its sole discretion, give notice an aggregate principal amount equal to the RL Lenders that its principal amount of outstanding Swingline Loans shall be funded with a Revolving Borrowing (provided that each made to such notice shall be deemed Borrower, and such Borrower and the Banks hereby irrevocably authorize the Agent to have been automatically given upon apply the occurrence proceeds of a Default or an Event such Committed Loans to the repayment of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided in Section 9.02), in which case a Revolving Borrowing constituting Base Rate such Swingline Loans (each and solely for the purpose of such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may conditions precedent set forth in Section 5.02 need not comply with be met, (ii) the minimum borrowing denominations set forth in Section 2.03(a) need not be met and (iii) the borrowing limitations set forth in this Agreement need not be met to the extent the Aggregate Commitment has been terminated or reduced after the making of Swingline Loans which are so being repaid). If any Borrower fails to repay any Swingline Loan within one Business Day after such a demand, or to repay any Swingline Loan when due, then each Bank shall irrevocably and unconditionally purchase from the Swingline Bank, without recourse or warranty, an un- divided interest and participation in such Swingline Loan in an amount equal to such Bank's Commitment Percentage, by forthwith paying such amount to the Swingline Bank in Dollars and in immediately available funds, and such payment shall be made whether or not a Default or an Event of Default is then continuing (iiincluding any Event of Default under Sections 9.01(f) whether and (g)) or any of the conditions other condition precedent set forth in Section 5.02 is then satisfied and (iii) met, whether or not such Borrower has requested a Borrowing or whether the borrowing limitations set forth in this Agreement are met Aggregate Commitment has been terminated or reduced below the amount of such Swingline Loan prior to the Aggregate Revolving Commitment then in effect (including time of such payment. If such amount is not paid to the fact that Swingline Bank by any Bank, the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason Swingline Bank shall be made entitled to recover such amount on demand from such Borrower or such Bank, together with accrued interest thereon from the date otherwise required above of demand therefor (includingif made prior to 12:00 noon (New York City time) on any Business Day (or, without limitationif made at a later time on a Business Day or on a day which is not a Business Day, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warrantynext Business Day) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment such amount is purchased and, paid to the extent attributable to Swingline Bank by such Bank at the purchased assignment, shall be payable to Federal Funds Rate for the RL Lender purchasing same from first three Business Days and after such date of purchasethereafter at the Base Rate. The failure of any RL Lender Bank to pay such amount to the Swingline Lender Bank shall not relieve any other RL Lender Bank of its obligation to make the payment to be made by it.
Appears in 1 contract
Samples: Credit Agreement (Us Industries Inc)
The Swingline Loans. (i) The Administrative Agent, the US Swingline Lender agreesand the Facility A Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative delivers a Borrowing Request to the Administrative Agent and the US Swingline Lender requesting an ABR Borrowing under Facility A on behalf of the Company to be made pursuant to this Section 2.05(a)(i), and provided that such ABR Borrowing request is received by the Administrative Agent and the US Swingline Lender not later than 11:00 a.m., New York time, the US Swingline Lender may elect to have the terms of this Section 2.05(a)(i) apply to such Borrowing Request by advancing, on behalf of the Facility A Lenders and in the amount so requested, same day funds to the Company on the date such request is received to the Funding Account(s) (each such Loan, a “Facility A Swingline Loan”), with settlement among them as to the Facility A Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility A Swingline Loan shall be subject to all the terms and conditions hereinafter set forthapplicable to other ABR Loans funded by the Facility A Lenders, to make Swingline Loans except that all payments thereon shall be payable to the Borrower on any Business Day during the period from the Closing Date to the Revolving Termination DateUS Swingline Lender solely for its own account. In addition, in an aggregate amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) each no Facility A Swingline Loan shall be made and maintained as a Base Rate Loan and (y) that if, after giving effect to any Swingline Borrowing, thereto:
(A) the Borrowers would not be in compliance with the Revolving Exposure Limitations; or
(B) the aggregate principal amount of all the outstanding Facility A Swingline Loans, together with the aggregate principal amount of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not would exceed the Aggregate Revolving Commitment. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Facility A Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline LoansSublimit.
(ii) The European Administrative Agent, the European Swingline Lender shall and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative delivers a Borrowing Request to the European Administrative Agent (with a copy to the Administrative Agent) requesting a Eurocurrency Borrowing under Facility B on behalf of the Company to be made pursuant to this Section 2.05(a)(ii), and provided that such Eurocurrency Borrowing request is received by the European Administrative Agent not be responsible for or liable later than 10 a.m., London time, the European Swingline Lender may elect to any Lender for determining whether have the terms of this Section 2.05(a)(ii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to the Company on the date (A) such request is received, in the case of any representation such Borrowing denominated in dollars, Canadian Dollars, Euros or warranty of the Borrower in connection with any request for a Swingline Loan is correct Sterling or (B) any Default or Event of Default exists or would result from that is one Business Day after the making date such request is received, in the case of any such Borrowing denominated in Yen, to the Funding Account(s) (each such Loan, a “Facility B US Swingline Loan; provided”), howeverwith settlement among them as to the Facility B US Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility B US Swingline Loan shall be subject to all the terms and conditions applicable to other Revolving Loans funded by the Facility B Lenders, except that (i) such Facility B US Swingline Loan shall accrue interest at a rate determined by reference to the Overnight LIBO Rate and (ii) all payments thereon shall be payable to the European Swingline Lender shall not make any solely for its own account. In addition, no Facility B US Swingline Loan shall be made if, after receiving a written notice from giving effect thereto:
(A) the Borrower or Borrowers would not be in compliance with the Required Lenders stating that a Default or an Event Revolving Exposure Limitations;
(B) the aggregate principal amount of Default exists and is continuing until such time as the outstanding Facility B Swingline Lender shall have received written notice from Loans would exceed the Administrative Agent that such Default or Event Facility B Swingline Sublimit; or
(C) the aggregate principal amount of Default has been cured or waivedthe outstanding Facility B US Swingline Loans would exceed $15,000,000.
(iii) Each The European Administrative Agent, the European Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan shall reduce Documents, promptly after the available Aggregate Revolving Commitment. For purposes Borrower Representative delivers a Borrowing Request to the European Administrative Agent (with a copy to the Administrative Agent) requesting a Eurocurrency Borrowing on behalf of the UK Borrower to be made pursuant to this Section 2.10(a2.05(a)(iii) (or the UK Borrower delivers such Borrowing Request), and provided that such Eurocurrency Borrowing request is received by the European Administrative Agent not later than 10:00 a.m., London time, the European Swingline Lender may elect to have the terms of this Section 2.05(a)(iii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to the UK Borrower on the date such Borrowing Request is received to the Funding Account(s) (each such Loan, a “UK Swingline Loan”), with settlement among them as to the UK Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each UK Swingline Loan shall be deemed subject to utilize only all the terms and conditions applicable to other UK Revolving Loans funded by the Facility B Lenders, except that (i) such UK Swingline Loan shall accrue interest at a rate determined by reference to the Overnight LIBO Rate and (ii) all payments thereon shall be payable to the European Swingline Lender solely for its own account. In addition, no UK Swingline Loan shall be made if, after giving effect thereto:
(A) the Borrowers would not be in compliance with the Revolving Commitment of the Swingline Lender but not any other Lender Exposure Limitations;
(it being understood that B) the aggregate principal amount of the outstanding Facility B Swingline Loans at any time outstanding may would exceed the otherwise unutilized portion Facility B Swingline Sublimit; or
(C) the aggregate principal amount of the Revolving Commitment of the outstanding UK Swingline Lender)Loans would exceed $5,000,000.
(iv) On any Business DayThe Canadian Administrative Agent, the Canadian Swingline Lender mayand the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, in its sole discretion, give notice promptly after the Borrower Representative delivers a Borrowing Request to the RL Lenders that its outstanding Canadian Administrative Agent and the Canadian Swingline Loans shall be funded Lender (with a Revolving copy to the Administrative Agent) requesting a Canadian Prime Rate Borrowing or an ABR Borrowing on behalf of the Canadian Borrower (or the Canadian Borrower requests such Borrowing) to be made pursuant to this Section 2.05(a)(iv), and provided that each such notice shall be deemed Canadian Prime Rate Borrowing request or ABR Borrowing request, as applicable, is received by the Canadian Administrative Agent and the Canadian Swingline Lender not later than 11 a.m., Local Time, the Canadian Swingline Lender may elect to have been automatically given upon the occurrence terms of a Default or an Event of Default under this Section 9.01(f2.05(a)(iv) or 9.01(g) or upon the exercise of any apply to such Borrowing Request by advancing, on behalf of the remedies provided Facility B Lenders and in Section 9.02)the amount so requested, in which case a Revolving same day funds to the Canadian Borrower on the date such Borrowing constituting Base Rate Loans Request is received to the Funding Account(s) (each such Revolving BorrowingLoan, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) “Canadian Swingline Loan”), with settlement among them as to the Canadian Swingline Loans to take place on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations a periodic basis as set forth in Section 2.03(a), (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated2.05(c). In Each Canadian Swingline Loan shall be subject to all the event terms and conditions applicable to other Loans funded by the Facility B Lenders that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitationare Canadian Prime Rate Loans or Canadian Loans that are ABR Loans, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower)applicable, each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided except that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, payments thereon shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Canadian Swingline Lender solely for its own account. In addition, no Canadian Swingline Loan shall not relieve any other RL Lender of its obligation to make the payment to be made by itif, after giving effect thereto:
(A) the Borrowers would not be in compliance with the Revolving Exposure Limitations;
(B) the aggregate principal amount of the outstanding Facility B Swingline Loans would exceed the Facility B Swingline Sublimit; or
(C) the aggregate principal amount of the outstanding Canadian Swingline Loans would exceed $5,000,000.
Appears in 1 contract
The Swingline Loans. (i) The Swingline Lender Bank agrees, on the terms and conditions hereinafter set forth, to make Swingline Loans to the any Borrower on any Business Day during the period from the Closing Effective Date to the Revolving Termination Date, in an aggregate amount not to exceed at any time outstanding the Swingline Amount; provided, however, that (xA) each on the Effective Date the Swingline Bank shall be permitted to make a Swingline Loan up to an amount equal to the Aggregate Commitment provided that any Interest Period related thereto shall be made and maintained as a Base Rate Loan not exceed one week) and (yB) that after giving effect to any Swingline BorrowingBorrowing (and to any concurrent repayment or prepayment of Loans), (i) the aggregate principal amount of all outstanding Swingline Loans, Loans together with (w) the aggregate principal amount of all outstanding Revolving Loans Committed Loans, plus (x) the aggregate principal amount of all outstanding Bid Loans, plus (y) the Dollar Equivalent of the aggregate principal amount of all outstanding Multicurrency Loans, plus (z) all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans)Obligations, shall not exceed the Aggregate Revolving Commitment, (ii) the sum of the Committed Loan Exposure and the Multicurrency Loan Exposure of any Bank shall not exceed such Bank's Commitment or (iii) the Dollar Equivalent of the aggregate principal amount of the Multicurrency Loans outstanding shall not exceed the Total Multicurrency Commitment. Within such limits, and subject to the other terms and conditions hereof, the each Borrower may borrow Swingline Loans under this Section 2.01(d2.01(b), repay pursuant to Section 2.11(b) or prepay pursuant to Section 2.06 2.09 or 2.07(a2.10(a) and reborrow pursuant to this Section 2.01(d2.01(b). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans.
(ii) The Swingline Lender Bank shall not be responsible for or liable to any Lender Bank for determining whether (A) any representation or warranty of the any Borrower in connection with any request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from the making of any such Swingline Loan; provided, however, that the Swingline Lender Bank shall not make any Swingline Loan after receiving a written notice from the any Borrower or the Required Lenders any Bank stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender Bank shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan shall be deemed to utilize only the Revolving Commitment of the Swingline Lender but not any other Lender (it being It is understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender)Bank.
(iv) On any Business DayUpon demand by the Swingline Bank, the Swingline Lender may, relevant Borrower shall promptly borrow Committed Loans from all the Banks pursuant to Section 2.01(a) in its sole discretion, give notice an aggregate principal amount equal to the RL Lenders that its principal amount of outstanding Swingline Loans shall be funded with made to such Borrower, and such Borrower and the Banks hereby irrevocably authorize the Agent to apply the proceeds of such Committed Loans to the repayment of such Swingline Loans (and solely for the purpose of such a Revolving Borrowing (provided that each such notice shall be deemed to have been automatically given upon x) the occurrence of a Default or an Event of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided conditions precedent set forth in Section 9.02)5.02 need not be met, in which case a Revolving Borrowing constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing"y) shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a) need not be met and (z) the borrowing limitations set forth in this Agreement need not be met to the extent the Aggregate Commitment has been terminated or reduced after the making of Swingline Loans which are so being repaid). If any Borrower fails to repay any Swingline Loan within one Business Day after such a demand, or to repay any Swingline Loan when due, then each Bank shall irrevocably and unconditionally purchase from the Swingline Bank, without recourse or warranty, an undivided interest and participation in such Swingline Loan in an amount equal to such Bank's Commitment Percentage, by forthwith paying such amount to the Swingline Bank in Dollars and in immediately available funds, and such payment shall be made (iiA) whether or not a Default or an Event of Default is then continuing (including any Event of the conditions Default under Sections 9.01(f) and (g)) or any other condition precedent set forth in Section 5.02 is then satisfied and met, (iiiB) whether or not such Borrower has requested a Borrowing or (C) whether or not the borrowing limitations set forth in this Agreement are met Aggregate Commitment has been terminated or reduced below the amount of such Swingline Loan prior to the Aggregate Revolving Commitment then in effect (including time of such payment. If such amount is not paid to the fact that Swingline Bank by any Bank, the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason Swingline Bank shall be made entitled to recover such amount on demand from such Borrower or such Bank, together with accrued interest thereon from the date otherwise required above of demand therefor (includingif made prior to 12:00 Noon (New York City time) on any Business Day (or, without limitationif made at a later time on a Business Day or on a day which is not a Business Day, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender next Business Day until the date the respective assignment such amount is purchased and, paid to the extent attributable to Swingline Bank by such Bank at the purchased assignment, shall be payable to Federal Funds Rate for the RL Lender purchasing same from first three Business Days and after such date of purchasethereafter at the Base Rate. The failure of any RL Lender Bank to pay such amount to the Swingline Lender Bank shall not relieve any other RL Lender Bank of its obligation to make the payment to be made by it.
Appears in 1 contract
The Swingline Loans. (i) The From the date hereof through but not including the Swingline Lender agreesExpiry Date, on and subject to the terms and conditions hereinafter set forth, upon notice by the Co-Borrowers made to the Swingline Lender in accordance with Section 2.5.2 hereof, the Swingline Lender agrees, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.5, to make Swingline Loans to the Borrower Co-Borrowers from time to time in Dollars on any Business Day during the period from the Closing Date to the Revolving Termination Date, in an aggregate principal amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) each Sublimit. Each Swingline Loan shall be made in a minimum amount equal to $250,000 or a multiple of $100,000 in excess thereof. Notwithstanding any other provisions of this Credit Agreement and maintained as a Base Rate Loan and in addition to the limit set forth above, at no time shall (ya) that the Dollar Equivalent of the Total Revolving Facility Usage (after giving effect to all amounts requested) exceed the lesser of (i) the Total Commitment or (ii) the Aggregate Borrowing Base as then in effect, or (b) the sum of the Dollar Equivalent of (x) the Co-Borrower Revolving Loans outstanding, plus (y) the LC Exposure in respect of Letters of Credit issued for the account of the Co-Borrowers, plus (z) the Swingline Loans outstanding (after giving effect to all amounts requested), exceed the lesser of (x) the Total Commitment or (y) the Domestic Borrowing Base as then in effect. The Swingline Loans are being made available for the administrative convenience of the Co-Borrowers, the Swingline Lender and the Lenders. Notwithstanding any other provisions of this Credit Agreement, the Swingline Lender shall not advance any Swingline Borrowing, the aggregate principal amount Loans if a Default or Event of all outstanding Swingline Loans, together Default has occurred until such Default or Event of Default has been cured or waived in accordance with the aggregate principal amount provisions of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of this Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not exceed the Aggregate Revolving CommitmentAgreement. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the The Swingline Lender shall not be obligated to make any Swingline Loans at a any time when any Revolving Lender is a Delinquent Lender Default exists 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 such Delinquent Lender's or Lenders' participation in such Swingline Loans, including by Cash Collateralizing cash collateralizing such Defaulting Delinquent Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans and any such additional Swingline Loans to be made. Within the foregoing limits and subject to the terms and conditions set forth herein, the Co-Borrowers may borrow, prepay and reborrow Swingline Loans.
(ii) The Swingline Lender shall not be responsible for or liable to any Lender for determining whether (A) any representation or warranty of the Borrower in connection with any . Each request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from hereunder shall constitute a representation and warranty by the making of any such Swingline Loan; provided, however, Co-Borrowers that the Swingline Lender shall not make any Swingline Loan after receiving a written notice from conditions set forth above and in Section 11 and Section 12, in the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan shall be deemed to utilize only the Revolving Commitment case of the Swingline Lender but not any other Lender (it being understood that the aggregate principal amount of initial Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender).
(iv) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the RL Lenders that its outstanding Swingline Loans shall be funded with a Revolving Borrowing (provided that each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided in Section 9.02), in which case a Revolving Borrowing constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a), (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (includingClosing Date, without limitationand Section 12, as a result in the case of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower)all other Swingline Loans, each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable have been satisfied on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its obligation to make the payment to be made by it.request
Appears in 1 contract
Samples: Multicurrency Revolving Credit Agreement (Borders Group Inc)
The Swingline Loans. (i) The From the date hereof through but not including the Swingline Lender agreesExpiry Date, on and subject to the terms and conditions hereinafter set forth, upon notice by the Co-Borrowers made to the Swingline Lender in accordance with Section 2.5.2 hereof, the Swingline Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.5, to make Swingline Loans to the Borrower Co-Borrowers from time to time in Dollars on any Business Day during the period from the Closing Date to the Revolving Termination Date, in an aggregate principal amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) each Sublimit. Each Swingline Loan shall be made in a minimum amount equal to $250,000 or a multiple of $100,000 in excess thereof. Notwithstanding any other provisions of this Credit Agreement and maintained in addition to the limit set forth above, at no time shall (a) the Dollar Equivalent of the Total Facility Usage (after giving affect to all amounts requested) exceed the lesser of (i) the Total Commitment or (ii) the Aggregate Borrowing Base as a Base Rate Loan and then in effect, or (b) the sum of the Dollar Equivalent of (x) the Co-Borrower Loans outstanding, plus (y) that the LC Exposure in respect of Letters of Credit issued for the account of the Co-Borrowers, plus (z) the Swingline Loans outstanding (after giving effect to all amounts requested), exceed the lesser of (x) the Total Commitment or (y) the Domestic Borrowing Base as then in effect. The Swingline Loans are being made available for the administrative convenience of the Co-Borrowers, the Swingline Lender and the Lenders. Notwithstanding any other provisions of this Credit Agreement, the Swingline Lender shall not advance any Swingline Borrowing, the aggregate principal amount Loans if a Default or Event of all outstanding Swingline Loans, together Default has occurred until such Default or Event of Default has been cured or waived in accordance with the aggregate principal amount provisions of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of this Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not exceed the Aggregate Revolving CommitmentAgreement. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the The Swingline Lender shall not be obligated to make any Swingline Loans at a any time when any Lender is a Delinquent Lender Default exists 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 such Delinquent Lender's or Lenders' participation in such Swingline Loans, including by Cash Collateralizing cash collateralizing such Defaulting Delinquent Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans and any such additional Swingline Loans to be made. Within the foregoing limits and subject to the terms and conditions set forth herein, the Co-Borrowers may borrow, prepay and reborrow Swingline Loans.
(ii) The Swingline Lender shall not be responsible for or liable to any Lender for determining whether (A) any representation or warranty of the Borrower in connection with any . Each request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from hereunder shall constitute a representation and warranty by the making of any such Swingline Loan; provided, however, Co-Borrowers that the Swingline Lender shall not make any Swingline Loan after receiving a written notice from conditions set forth above and in Section 11 and Section 12, in the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan shall be deemed to utilize only the Revolving Commitment case of the Swingline Lender but not any other Lender (it being understood that the aggregate principal amount of initial Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender).
(iv) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the RL Lenders that its outstanding Swingline Loans shall be funded with a Revolving Borrowing (provided that each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided in Section 9.02), in which case a Revolving Borrowing constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a), (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (includingClosing Date, without limitationand Section 12, as a result in the case of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower)all other Swingline Loans, each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable have been satisfied on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its obligation to make the payment to be made by it.request
Appears in 1 contract
Samples: Multicurrency Revolving Credit Agreement (Borders Group Inc)
The Swingline Loans. (i) The From the date hereof through but not including the Swingline Lender agreesExpiry Date, on and subject to the terms and conditions hereinafter set forth, upon notice by the Borrowers made to the Swingline Lender in accordance with §2.5.2 hereof, and in reliance upon the agreements of the other Lenders set forth in this §2.5, the Swingline Lender may in its sole discretion make Swingline Loans to the Borrower Borrowers from time to time in Dollars on any Business Day during the period from the Closing Date to the Revolving Termination Date, in an aggregate principal amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) each Sublimit. Each Swingline Loan shall be made in a minimum amount equal to $250,000 or a multiple of $100,000 in excess thereof. Notwithstanding any other provisions of this Credit Agreement and maintained as a Base Rate Loan and in addition to the limit set forth above, at no time shall the Total Facility Usage (y) that after giving effect to all amounts requested) exceed the lesser of (i) the Total Commitment or (ii) the Aggregate Borrowing Base as then in effect. The Swingline Loans are being made available for the administrative convenience of the Borrowers, the Swingline Lender and the Lenders. Notwithstanding any other provisions of this Credit Agreement, the Swingline Lender shall not advance any Swingline Borrowing, the aggregate principal amount Loans if a Default or Event of all outstanding Swingline Loans, together Default has occurred until such Default or Event of Default has been cured or waived in accordance with the aggregate principal amount provisions of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of this Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not exceed the Aggregate Revolving CommitmentAgreement. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the The Swingline Lender shall not be obligated to make any Swingline Loans at a any time when any Lender is a Delinquent Lender Default exists unless the Swingline Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swingline Lender's ’s risk of full reimbursement with respect to the Defaulting such Delinquent Lender's or Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Delinquent Lender's or Lenders' Revolving ’s Commitment Percentage of the outstanding Swingline Loans and any such additional Swingline Loans to be made as set forth in this Agreement. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.
(ii) The Swingline Lender shall not be responsible for or liable to any Lender for determining whether (A) any representation or warranty of the Borrower in connection with any . Each request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from hereunder shall constitute a representation and warranty by the making Borrowers that the conditions set forth above and in §11 and §12, in the case of any such Swingline Loan; provided, however, that the Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan shall be deemed to utilize only the Revolving Commitment of the Swingline Lender but not any other Lender (it being understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender).
(iv) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the RL Lenders that its outstanding Swingline Loans shall be funded with a Revolving Borrowing (provided that each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided in Section 9.02), in which case a Revolving Borrowing constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a), (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (includingEffective Date, without limitationand §12, as a result in the case of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower)all other Swingline Loans, each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable have been satisfied on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its obligation to make the payment to be made by itrequest.
Appears in 1 contract
The Swingline Loans. (i) The Administrative Agent, the US Swingline Lender agreesand the Facility A Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative delivers a Borrowing Request to the Administrative Agent and the US Swingline Lender requesting an ABR Borrowing under Facility A on behalf of the Company to be made pursuant to this Section 2.05(a)(i), and provided that such ABR Borrowing request is received by the Administrative Agent and the US Swingline Lender not later than 11:00 a.m., New York time, the US Swingline Lender may elect to have the terms of this Section 2.05(a)(i) apply to such Borrowing Request by advancing, on behalf of the Facility A Lenders and in the amount so requested, same day funds to the Company on the date such request is received to the Funding Account(s) (each such Loan, a “Facility A Swingline Loan”), with settlement among them as to the Facility A Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility A Swingline Loan shall be subject to all the terms and conditions hereinafter set forthapplicable to other ABR Loans funded by the Facility A Lenders, to make Swingline Loans except that all payments thereon shall be payable to the Borrower on any Business Day during the period from the Closing Date to the Revolving Termination DateUS Swingline Lender solely for its own account. In addition, in an aggregate amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) each no Facility A Swingline Loan shall be made and maintained as a Base Rate Loan and (y) that if, after giving effect to any Swingline Borrowing, thereto:
(A) the Borrowers would not be in compliance with the Revolving Exposure Limitations; or
(B) the aggregate principal amount of all the outstanding Facility A Swingline Loans, together with the aggregate principal amount of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not would exceed the Aggregate Revolving Commitment. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Facility A Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline LoansSublimit.
(ii) The European Administrative Agent, the European Swingline Lender shall and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative delivers a Borrowing Request to the European Administrative Agent (with a copy to the Administrative Agent) requesting a Eurocurrency Borrowing under Facility B on behalf of the Company to be made pursuant to this Section 2.05(a)(ii), and provided that such Eurocurrency Borrowing request is received by the European Administrative Agent not be responsible for or liable later than 10 a.m., London time, the European Swingline Lender may elect to any Lender for determining whether have the terms of this Section 2.05(a)(ii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to the Company on the date (A) such request is received, in the case of any representation such Borrowing denominated in dollars, Canadian Dollars, Euros or warranty of the Borrower in connection with any request for a Swingline Loan is correct Sterling or (B) any Default or Event of Default exists or would result from that is one Business Day after the making date such request is received, in the case of any such Borrowing denominated in Yen, to the Funding Account(s) (each such Loan, a “Facility B US Swingline Loan; provided”), howeverwith settlement among them as to the Facility B US Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Facility B US Swingline Loan shall be subject to all the terms and conditions applicable to other Revolving Loans funded by the Facility B Lenders, except that (i) such Facility B US Swingline Loan shall accrue interest at a rate determined by reference to the Overnight LIBO Rate and (ii) all payments thereon shall be payable to the European Swingline Lender shall not make any solely for its own account. In addition, no Facility B US Swingline Loan shall be made if, after receiving a written notice from giving effect thereto:
(A) the Borrower or Borrowers would not be in compliance with the Required Lenders stating that a Default or an Event Revolving Exposure Limitations;
(B) the aggregate principal amount of Default exists and is continuing until such time as the outstanding Facility B Swingline Lender shall have received written notice from Loans would exceed the Administrative Agent that such Default or Event Facility B Swingline Sublimit; or
(C) the aggregate principal amount of Default has been cured or waivedthe outstanding Facility B US Swingline Loans would exceed $15,000,000.
(iii) Each The European Administrative Agent, the European Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan shall reduce Documents, promptly after the available Aggregate Revolving Commitment. For purposes Borrower Representative delivers a Borrowing Request to the European Administrative Agent (with a copy to the Administrative Agent) requesting a Eurocurrency Borrowing on behalf of the EuropeanUK Borrower to be made pursuant to this Section 2.10(a2.05(a)(iii) (or the European UK Borrower delivers such Borrowing Request), and provided that such Eurocurrency Borrowing request is received by the European Administrative Agent not later than 10:00 a.m., London time, the European Swingline Lender may elect to have the terms of this Section 2.05(a)(iii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to the European Borrower on the date such Borrowing Request is received to the Funding Account(s) (each such Loan, a “European Swingline Loan”), with settlement among them as to the European Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each European Swingline Loan shall be deemed subject to utilize only all the terms and conditions applicable to other European Revolving Loans funded by the Facility B Lenders, except that (i) such European Swingline Loan shall accrue interest at a rate determined by reference to the Overnight LIBO Rate and (ii) all payments thereon shall be payable to the European Swingline Lender solely for its own account. In addition, no European Swingline Loan shall be made if, after giving effect thereto:UK Borrower on the date such Borrowing Request is received to the Funding Account(s) (each such Loan, a “UK Swingline Loan”), with settlement among them as to the UK Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each UK Swingline Loan shall be subject to all the terms and conditions applicable to other UK Revolving Loans funded by the Facility B Lenders, except that (i) such UK Swingline Loan shall accrue interest at a rate determined by reference to the Overnight LIBO Rate and (ii) all payments thereon shall be payable to the European Swingline Lender solely for its own account. In addition, no UK Swingline Loan shall be made if, after giving effect thereto:
(A) the Borrowers would not be in compliance with the Revolving Commitment of the Swingline Lender but not any other Lender Exposure Limitations;
(it being understood that B) the aggregate principal amount of the outstanding Facility B Swingline Loans at any time outstanding may would exceed the otherwise unutilized portion Facility B Swingline Sublimit; or
(C) the aggregate principal amount of the Revolving Commitment of the outstanding European Swingline Lender)Loans would exceed $15,000,000.
(iv) On any Business DayThe European Administrative Agent, the UK Swingline Lender mayand the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, in its sole discretion, give notice promptly after the Borrower Representative delivers a Borrowing Request to the RL Lenders that its outstanding Swingline Loans shall be funded European Administrative Agent (with a Revolving copy to the Administrative Agent) requesting a Eurocurrency Borrowing on behalf of the UK Borrower to be made pursuant to this Section 2.05(a)(iv) (or the UK Borrower delivers such Borrowing Request), and provided that each such notice shall be deemed Eurocurrency Borrowing request is received by the European Administrative Agent not later than 10:00 a.m., London time, the UK Swingline Lender may elect to have been automatically given upon the occurrence terms of a Default or an Event of Default under this Section 9.01(f2.05(a)(iv) or 9.01(g) or upon the exercise of any apply to such Borrowing Request by advancing, on behalf of the remedies provided Facility B Lenders and in Section 9.02)the amount so requested, in which case a Revolving same day funds to the UK Borrower on the date such Borrowing constituting Base Rate Loans Request is received to the Funding Account(s) (each such Revolving BorrowingLoan, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a), (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its obligation to make the payment to be made by it.a
Appears in 1 contract
Samples: Credit Agreement (Claiborne Liz Inc)
The Swingline Loans. (i) The Administrative Agent, the US Swingline Lender agreesand the Facility A Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative delivers a Borrowing Request to the Administrative Agent and the US Swingline Lender requesting an ABR Borrowing under Facility A on behalf of the Company to be made pursuant to this Section 2.05(a)(i), and provided that such ABR Borrowing request is received by the Administrative Agent and the US Swingline Lender not later than 11:00 a.m., New York time, the US Swingline Lender may elect to have the terms of this Section 2.05(a)(i) apply to such Borrowing Request by advancing, on behalf of the Facility A Lenders and in the amount so requested, same day funds to the Company on the date such request is received to the Funding Account(s) (each such Loan, a “Facility A Swingline Loan”), with settlement among them as to the Facility A Swingline Loans to take place on a periodic basis as set forth in Section 2.05(d). Each Facility A Swingline Loan shall be subject to all the terms and conditions hereinafter set forthapplicable to other ABR Loans funded by the Facility A Lenders, to make Swingline Loans except that all payments thereon shall be payable to the Borrower on any Business Day during the period from the Closing Date to the Revolving Termination DateUS Swingline Lender solely for its own account. In addition, in an aggregate amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) each no Facility A Swingline Loan shall be made and maintained as a Base Rate Loan and (y) that if, after giving effect to any Swingline Borrowing, thereto:
(A) the Borrowers would not be in compliance with the Revolving Exposure Limitations; or
(B) the aggregate principal amount of all the outstanding Facility A Swingline Loans, together with the aggregate principal amount of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not would exceed the Aggregate Revolving Commitment. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Facility A Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline LoansSublimit.
(ii) The European Administrative Agent, the European Swingline Lender shall and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative delivers a Borrowing Request to the European Administrative Agent (with a copy to the Administrative Agent) requesting a Eurocurrency Borrowing under Facility B on behalf of the Company to be made pursuant to this Section 2.05(a)(ii), and provided that such Eurocurrency Borrowing request is received by the European Administrative Agent not be responsible for or liable later than 10 a.m., London time, the European Swingline Lender may elect to any Lender for determining whether have the terms of this Section 2.05(a)(ii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to the Company on the date (A) such request is received, in the case of any representation such Borrowing denominated in dollars, Canadian Dollars, Euros or warranty of the Borrower in connection with any request for a Swingline Loan is correct Sterling or (B) any Default or Event of Default exists or would result from that is one Business Day after the making date such request is received, in the case of any such Borrowing denominated in Yen, to the Funding Account(s) (each such Loan, a “Facility B US Swingline Loan; provided”), howeverwith settlement among them as to the Facility B US Swingline Loans to take place on a periodic basis as set forth in Section 2.05(d). Each Facility B US Swingline Loan shall be subject to all the terms and conditions applicable to other Revolving Loans funded by the Facility B Lenders, except that (i) such Facility B US Swingline Loan shall accrue interest at a rate determined by reference to the Overnight LIBO Rate and (ii) all payments thereon shall be payable to the European Swingline Lender shall not make any solely for its own account. In addition, no Facility B US Swingline Loan shall be made if, after receiving a written notice from giving effect thereto:
(A) the Borrower or Borrowers would not be in compliance with the Required Lenders stating that a Default or an Event Revolving Exposure Limitations;
(B) the aggregate principal amount of Default exists and is continuing until such time as the outstanding Facility B Swingline Lender shall have received written notice from Loans would exceed the Administrative Agent that such Default or Event Facility B Swingline Sublimit; or
(C) the aggregate principal amount of Default has been cured or waivedthe outstanding Facility B US Swingline Loans would exceed $10,000,000.
(iii) Each The European Administrative Agent, the European Swingline Lender and the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan shall reduce Documents, promptly after the available Aggregate Revolving Commitment. For purposes Borrower Representative delivers a Borrowing Request to the European Administrative Agent (with a copy to the Administrative Agent) requesting a Eurocurrency Borrowing on behalf of the UK Borrower to be made pursuant to this Section 2.10(a2.05(a)(iii) (or the UK Borrower delivers such Borrowing Request), and provided that such Eurocurrency Borrowing request is received by the European Administrative Agent not later than 10:00 a.m., London time, the European Swingline Lender may elect to have the terms of this Section 2.05(a)(iii) apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the amount so requested, same day funds to the UK Borrower on the date such Borrowing Request is received to the Funding Account(s) (each such Loan, a “UK Swingline Loan”), with settlement among them as to the UK Swingline Loans to take place on a periodic basis as set forth in Section 2.05(d). Each UK Swingline Loan shall be deemed subject to utilize only all the terms and conditions applicable to other UK Revolving Loans funded by the Facility B Lenders, except that (i) such UK Swingline Loan shall accrue interest at a rate determined by reference to the Overnight LIBO Rate and (ii) all payments thereon shall be payable to the European Swingline Lender solely for its own account. In addition, no UK Swingline Loan shall be made if, after giving effect thereto:
(A) the Borrowers would not be in compliance with the Revolving Commitment of the Swingline Lender but not any other Lender Exposure Limitations;
(it being understood that B) the aggregate principal amount of the outstanding Facility B Swingline Loans at any time outstanding may would exceed the otherwise unutilized portion Facility B Swingline Sublimit; or
(C) the aggregate principal amount of the Revolving Commitment of the outstanding UK Swingline Lender)Loans would exceed $5,000,000.
(iv) On any Business DayThe Canadian Administrative Agent, the Canadian Swingline Lender mayand the Facility B Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, in its sole discretion, give notice promptly after the Borrower Representative delivers a Borrowing Request to the RL Lenders that its outstanding Canadian Administrative Agent and the Canadian Swingline Loans shall be funded Lender (with a Revolving copy to the Administrative Agent) requesting a Canadian Prime Rate Borrowing or an ABR Borrowing on behalf of the Canadian Borrower (or the Canadian Borrower requests such Borrowing) to be made pursuant to this Section 2.05(a)(iv), and provided that each such notice shall be deemed Canadian Prime Rate Borrowing request or ABR Borrowing request, as applicable, is received by the Canadian Administrative Agent and the Canadian Swingline Lender not later than 11 a.m., Local Time, the Canadian Swingline Lender may elect to have been automatically given upon the occurrence terms of a Default or an Event of Default under this Section 9.01(f2.05(a)(iv) or 9.01(g) or upon the exercise of any apply to such Borrowing Request by advancing, on behalf of the remedies provided Facility B Lenders and in Section 9.02)the amount so requested, in which case a Revolving same day funds to the Canadian Borrower on the date such Borrowing constituting Base Rate Loans Request is received to the Funding Account(s) (each such Revolving BorrowingLoan, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) “Canadian Swingline Loan”), with settlement among them as to the Canadian Swingline Loans to take place on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations a periodic basis as set forth in Section 2.03(a), (ii) whether any of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated2.05(d). In Each Canadian Swingline Loan shall be subject to all the event terms and conditions applicable to other Loans funded by the Facility B Lenders that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitationare Canadian Prime Rate Loans or Canadian Loans that are ABR Loans, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower)applicable, each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided except that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, payments thereon shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Canadian Swingline Lender solely for its own account. In addition, no Canadian Swingline Loan shall not relieve any other RL Lender of its obligation to make the payment to be made by itif, after giving effect thereto:
(A) the Borrowers would not be in compliance with the Revolving Exposure Limitations;
(B) the aggregate principal amount of the outstanding Facility B Swingline Loans would exceed the Facility B Swingline Sublimit; or
(C) the aggregate principal amount of the outstanding Canadian Swingline Loans would exceed $5,000,000.
Appears in 1 contract
Samples: Credit Agreement (Kate Spade & Co)
The Swingline Loans. (i) The Swingline Lender Bank agrees, on the terms and conditions hereinafter set forth, to make Swingline Loans to the any Borrower on any Business Day during the period from the Closing Effective Date to the Revolving Termination Date, in an aggregate amount not to exceed at any time outstanding the Swingline Amount; provided, however, that (xA) each on the Effective Date the Swingline Bank shall be permitted to make a Swingline Loan up to an amount equal to the Aggregate Commitment provided that any Interest Period related thereto shall be made and maintained as a Base Rate Loan not exceed one week) and (yB) that after giving effect to any Swingline BorrowingBorrowing (and to any concurrent repayment or prepayment of Loans), (i) the aggregate principal amount of all outstanding Swingline Loans, Loans together with (w) the aggregate principal amount of all outstanding Revolving Loans Committed Loans, plus (x) the aggregate principal amount of all outstanding Bid Loans, plus (y) the Dollar Equivalent of the aggregate principal amount of all outstanding Multicurrency Loans plus, (z) all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans)Obligations, shall not exceed the Aggregate Revolving Commitment, (ii) the sum of the Committed Loan Exposure and the Multicurrency Loan Exposure of any Bank shall not exceed such Bank's Commitment or (iii) the Dollar Equivalent of the aggregate principal amount of the Multicurrency Loans outstanding shall not exceed the Total Multicurrency Commitment. Within such limits, and subject to the other terms and conditions hereof, the each Borrower may borrow Swingline Loans under this Section 2.01(d2.01(b), repay pursuant to Section 2.11(b) or prepay pursuant to Section 2.06 2.09 or 2.07(a2.10(a) and reborrow pursuant to this Section 2.01(d2.01(b). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans.
(ii) The Swingline Lender Bank shall not be responsible for or liable to any Lender Bank for determining whether (A) any representation or warranty of the any Borrower in connection with any request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from the making of any such Swingline Loan; provided, however, that the Swingline Lender Bank shall not make any Swingline Loan after receiving a written notice from the any Borrower or the Required Lenders any Bank stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender Bank shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan shall be deemed to utilize only the Revolving Commitment of the Swingline Lender but not any other Lender (it being It is understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender)Bank.
(iv) On any Business DayUpon demand by the Swingline Bank, the Swingline Lender may, relevant Borrower shall promptly borrow Committed Loans from all the Banks pursuant to Section 2.01(a) in its sole discretion, give notice an aggregate principal amount equal to the RL Lenders that its principal amount of outstanding Swingline Loans shall be funded with made to such Borrower, and such Borrower and the Banks hereby irrevocably authorize the Agent to apply the proceeds of such Committed Loans to the repayment of such Swingline Loans (and solely for the purpose of such a Revolving Borrowing (provided that each such notice shall be deemed to have been automatically given upon x) the occurrence of a Default or an Event of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided conditions precedent set forth in Section 9.02)5.02 need not be met, in which case a Revolving Borrowing constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing"y) shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a) need not be met and (z) the borrowing limitations set forth in this Agreement need not be met to the extent the Aggregate Commitment has been terminated or reduced after the making of Swingline Loans which are so being repaid). If any Borrower fails to repay any Swingline Loan within one Business Day after such a demand, or to repay any Swingline Loan when due, then each Bank shall irrevocably and unconditionally purchase from the Swingline Bank, without recourse or warranty, an undivided interest and participation in such Swingline Loan in an amount equal to such Bank's Commitment Percentage, by forthwith paying such amount to the Swingline Bank in Dollars and in immediately available funds, and such payment shall be made (iiA) whether or not a Default or an Event of Default is then continuing (including any Event of the conditions Default under Sections 9.01(f) and (g)) or any other condition precedent set forth in Section 5.02 is then satisfied and met, (iiiB) whether or not such Borrower has requested a Borrowing or (C) whether or not the borrowing limitations set forth in this Agreement are met Aggregate Commitment has been terminated or reduced below the amount of such Swingline Loan prior to the Aggregate Revolving Commitment then in effect (including time of such payment. If such amount is not paid to the fact that Swingline Bank by any Bank, the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason Swingline Bank shall be made entitled to recover such amount on demand from such Borrower or such Bank, together with accrued interest thereon from the date otherwise required above of demand therefor (includingif made prior to 12:00 Noon (New York City time) on any Business Day (or, without limitationif made at a later time on a Business Day or on a day which is not a Business Day, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warrantynext Business Day) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment such amount is purchased and, paid to the extent attributable to Swingline Bank by such Bank at the purchased assignment, shall be payable to Federal Funds Rate for the RL Lender purchasing same from first three Business Days and after such date of purchasethereafter at the Base Rate. The failure of any RL Lender Bank to pay such amount to the Swingline Lender Bank shall not relieve any other RL Lender Bank of its obligation to make the payment to be made by it.
Appears in 1 contract
Samples: Credit Agreement (Us Industries Inc)
The Swingline Loans. (i) The On each Swingline Funding Date, the Swingline Lender agrees, on the terms and conditions hereinafter set forth, to will make a Swingline Loans Loan to the Borrower on any Business Day in the amount specified in the Notice of Borrowing relating to the Swingline Funding Date in accordance with the provisions of Section 2.2(e). Swingline Funding Dates may occur only during the period from the Closing Date to the Revolving Termination Date, in an aggregate Credit Availability Period. The initial principal amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) of each Swingline Loan shall be made may not exceed the Aggregate Swingline Loan Commitment, and maintained as a Base Rate Loan and (y) that after giving effect to the aggregate principal amount of the Swingline Loans extended on any Swingline Borrowing, Funding Date may not (A) cause the aggregate principal amount of all Swingline Loans outstanding to exceed the Aggregate Swingline Loans, together with Loan Commitment or (B) cause the aggregate principal amount of all outstanding Aggregate Revolving Loans plus the aggregate amount of all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not Loan Exposure to exceed the Aggregate Revolving Credit Commitment. Within After payment of all fees, expenses and other amounts required by the Financing Documents to be paid by the Borrower on such limits, and subject to the other terms and conditions hereofSwingline Funding Date, the Borrower may borrow Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in remaining aggregate net proceeds of such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's if any, will be disbursed to the Borrower or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loansits designee and will be used solely as specified in Section 2.7(b).
(ii) The Each Borrowing of Swingline Lender shall not Loans will be responsible for or liable to any Lender for determining whether in the minimum aggregate amount of Five Hundred Thousand Dollars (A$500,000) any representation or warranty and in integral multiples of the Borrower One Hundred Thousand Dollars ($100,000) in connection with any request for excess thereof; provided, that a Swingline Loan funded to repay a LC Disbursement in accordance with Section 2.2(c)(iii) may be in such amount as is correct or (B) any Default or Event of Default exists or would result from the making of any necessary to repay such Swingline Loan; provided, however, that the Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waivedLC Disbursement.
(iii) Each Swingline Loan shall reduce will mature on the available Aggregate Revolving Commitment. For purposes earlier of Section 2.10(a)(i) the fifth (5th) Business Day after the relevant Swingline Funding Date or (ii) the Facility Maturity Date, each Swingline Loan shall be deemed unless payment thereof is due prior to utilize only the Revolving Commitment of the Swingline Lender but not any other Lender (it being understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender)such date by acceleration, mandatory prepayment or otherwise.
(iv) On The Swingline Loans will be revolving in nature and, as such, within the limits set forth herein, the Borrower may pay or prepay the whole of each Swingline Loan and any Business Daypart of the Aggregate Swingline Loan Commitment which has been previously paid or prepaid may be reborrowed.
(v) The aggregate outstanding principal amount of, and interest in respect of, any Swingline Loan is due on the maturity date thereof determined in accordance with Section 2.2(b)(iii); provided, that if the Borrower does not pay to the Swingline Lender any such amounts when due and payable, the Swingline Lender may, in its sole discretion, give upon written notice to the RL Lenders that its outstanding Swingline Loans shall be funded with Administrative Agent, request the satisfaction of such Obligation by the making of a Revolving Borrowing (provided that each Working Capital Loan in the amount then due. Upon such notice shall request, the Borrower will be deemed to have submitted a Notice of Borrowing for a Working Capital Loan in the amount of such Obligation and to have authorized the transfer of the proceeds thereof to the Swingline Lender. The Administrative Agent will promptly forward notice of such Working Capital Loan to the Borrower and the Revolving Credit Lenders and each Revolving Credit Lender will, regardless of whether any conditions precedent otherwise applicable to a Working Capital Loan have been automatically given upon met, regardless of whether the occurrence Revolving Credit Availability Period has expired or been terminated and regardless of a Default or whether an Event of Default under Section 9.01(f) has occurred or 9.01(g) or upon the exercise of any is then continuing, make available such Revolving Credit Lender’s Pro Rata Share of the remedies provided amounts then due and payable in Section 9.02), in which case a Revolving Borrowing constituting Base Rate Loans (each respect of such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on Obligation and the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, and Administrative Agent will promptly deliver the proceeds thereof shall be applied directly to repay the Swingline Lender for application to such outstanding amounts owed to the Swingline Loans. Each RL Lender, whereupon (A) if at such time an Event of Default has occurred and is continuing or the Revolving Credit Availability Period has expired or been terminated, each Revolving Credit Lender hereby irrevocably agrees that so makes funds available will be deemed to make have purchased and funded a participation interest in the Obligations related to such Swingline Loan(s) and (B) otherwise, each Revolving Credit Lender that so makes funds available will be deemed to have made a Working Capital Loan that will be a Base Rate Loans upon one Business Day's notice pursuant Loan to each Mandatory Borrowing the Borrower in the amount such amount.
(vi) The Borrower hereby unconditionally and in the manner specified in the preceding sentence irrevocably authorizes, empowers, and on the date specified in writing by directs (A) the Swingline Lender notwithstanding (i) that the amount to request a Working Capital Loan on behalf of the Mandatory Borrowing may Borrower pursuant to Section 2.2(b)(v) and (B) the Revolving Credit Lenders to make Working Capital Loans to the Administrative Agent for the benefit of the Swingline Lender in satisfaction of such Obligations. The Administrative Agent and each Revolving Credit Lender will record and otherwise treat the making of any such Loan as the making of a Working Capital Loan to the Borrower under this Financing Agreement as if requested by the Borrower. Nothing in Sections 2.2(b)(v)-(viii) is intended to release the Borrower’s Obligations under the Swingline Loan Note, but only to provide an additional method of payment therefor. The making of a Working Capital Loan under Section 2.2(b)(v) will not constitute a cure or waiver of any Event of Default, other than the payment default that is satisfied by the application of the amounts deemed advanced hereunder, caused by the Borrower’s failure to comply with the minimum borrowing denominations set forth in Section 2.03(a)provisions of this Financing Agreement or the Swingline Loan Note.
(vii) If at any time, (ii) whether the Commitments have or the Revolving Credit Availability Period has expired or been terminated while any Swingline Loan is outstanding, each Revolving Credit Lender, at the sole option of the conditions precedent set forth Swingline Lender, will either (A) notwithstanding such expiration or termination, make a Working Capital Loan as Base Rate Loan, or (B) be deemed, without further action by any Person, to have purchased from the Swingline Lender a participation in Section 5.02 is then satisfied and (iii) whether such Swingline Loans, in either case in an amount equal to the borrowing limitations set forth in this Agreement are met or the amount product of such Revolving Credit Lender’s Pro Rata Share of the Aggregate Revolving Credit Commitment then in effect (including times the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result outstanding principal balance of the commencement of a proceeding under the Bankruptcy Code in respect Swingline Loans. The Administrative Agent will notify each Revolving Credit Lender of the Borrower)amount of such Revolving Credit Loan or participation, each RL and such Lender hereby agrees that it shall forthwith purchase from will transfer to the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the Swingline Loans shall be Administrative Agent for the account of the Swingline Lender on the next Business Day following such notice, in immediately available funds, the amount of such Working Capital Loan or participation.
(viii) If any Revolving Credit Lender has not made when due its Working Capital Loan or not made available to the Administrative Agent when due its participation interest pursuant to Section 2.2(b)(vii), such Lender agrees to pay interest thereon for each day from the due date until the date such amount is paid at the respective assignment is purchased andFederal Funds Rate for the first three days and thereafter at the interest rate applicable to Base Rate Loans. Whenever, at any time after the Administrative Agent has received from any Revolving Credit Lender such Lender’s Working Capital Loan or the funding for its participation interest in a Swingline Loan, the Administrative Agent receives any payment on account thereof, the Administrative Agent will pay to such Lender its interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the extent attributable period of time during which such Lender’s Working Capital Loan or funded participating interest was outstanding and funded), which payment will be subject to repayment by such Revolving Credit Lender if such payment received by the purchased assignment, shall Administrative Agent is required to be payable to the RL Lender purchasing same from and after such date of purchasereturned. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its Each Revolving Credit Lender’s obligation to make a Working Capital Loan or purchase participating interests pursuant to this Section 2.2(b)(viii) will be absolute and unconditional and will not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Revolving Credit Lender or any other Person may have against the payment Swingline Lender, the Administrative Agent or any other Person for any reason whatsoever; (B) the occurrence or continuance of an Event of Default or the termination of the Commitments; (C) any breach of this Financing Agreement by the Borrower or any other Lender; or (D) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Swingline Loans, once refinanced with Working Capital Loans by the Lenders, will cease to be made by itSwingline Loans with respect to that amount for purposes of this Financing Agreement, but will continue to be Working Capital Loans.
Appears in 1 contract
The Swingline Loans. (i) The Swingline Lender agrees, on the ------------------- terms and conditions hereinafter set forth, to make Swingline Loans to the Borrower on any Business Day during the period from the Closing Restatement Effective Date to the Revolving Termination DateDate for Swingline Loans, in an aggregate amount not to exceed at any time outstanding the Swingline Amount; provided, however, (x) each -------- ------- Swingline Loan shall be made and maintained as a Base Rate Loan and (y) that after giving effect to any Swingline Borrowing, the aggregate principal amount of all outstanding Swingline Loans, together with the aggregate principal amount of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not exceed the lesser of the Aggregate Revolving CommitmentCommitment and the Revolving Availability. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Swingline Loans under this Section 2.01(d2.01(b), repay pursuant --------------- to Section 2.08(b) or prepay pursuant to Section 2.06 or 2.07(a) and reborrow --------------- ------------ ------- pursuant to this Section 2.01(d2.01(b). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline Loans.---------------
(ii) The Swingline Lender shall not be responsible for or liable to any Lender for determining whether (A) any representation or warranty of the Borrower in connection with any request for a Swingline Loan is correct or (B) any Default or Event of Default exists or would result from the making of any such Swingline Loan; provided, however, that the Swingline Lender shall not make -------- ------- any Swingline Loan after receiving a written notice from the Borrower or the Required Majority Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan --------------- shall be deemed to utilize only the Revolving Commitment of the Swingline Lender (but not any other Lender Lender) by an amount equal to such Swingline Loan (it being understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender).
(iv) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the RL Lenders that its outstanding Swingline Loans shall be funded with a Revolving Borrowing of Revolving Loans (provided that -------- each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.01(e) or 9.01(f) or 9.01(g) --------------- ------- or upon the exercise of any of the remedies provided in Section 9.02), in which ------------ case a Revolving Borrowing of Revolving Loans constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the ------------------- immediately succeeding Business Day by all RL Lenders pro rata based on each RL --- ---- Lender's Revolving Commitment Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations set forth in Section 2.03(a), (ii) whether any of the conditions precedent set forth --------------- in Section 5.02 is then satisfied and (iii) whether the borrowing limitations ------------ set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated)) or the amount of the Revolving Availability at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the -------- Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its obligation to make the payment to be made by it.
Appears in 1 contract
The Swingline Loans. (i) The Subject to the provisions of Section 2.01(g) below, each Swingline Lender agrees, on the terms and conditions hereinafter set forth, to make Swingline Loans advances to the Borrower from time to time on any Business Day during the period from the Closing Date to the Revolving Termination Date, Liquidity Availability Period (1) in an aggregate amount for each such Borrowing not to exceed for all Swingline Loans advanced by such Swingline Lender, the lesser of (A) its Swingline Commitment at any such time, (B) an amount equal to the aggregate Unused Liquidity Revolving Credit Commitments of the Liquidity Lenders at such time outstanding and (C) the Swingline AmountSublimit; providedand (2) provided that the sum of the total Credit Exposure of all Liquidity Lenders upon giving effect to such Swingline Borrowing shall not exceed the aggregate Liquidity Commitments. Within the limits of each Swingline Lender’s Swingline Commitments, however, (xamounts borrowed under this Section 2.01(f) each and repaid or prepaid may be reborrowed. No Swingline Loan shall be made and maintained as a Base Rate Loan and (y) that after giving effect to used for the purpose of funding the payment of principal of any other Swingline Borrowing, the aggregate principal amount of all outstanding Swingline Loans, together with the aggregate principal amount of all outstanding Revolving Loans plus the aggregate amount of all outstanding Letter of Credit Obligations (exclusive of unpaid drawings under any Letter of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), shall not exceed the Aggregate Revolving Commitment. Within such limits, and subject to the other terms and conditions hereof, the Borrower may borrow Swingline Loans under this Section 2.01(d), prepay pursuant to Section 2.06 or 2.07(a) and reborrow pursuant to this Section 2.01(d). Notwithstanding the foregoing, the Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists 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 Lenders' participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender's or Lenders' Revolving Commitment Percentage of the outstanding Swingline LoansLoan.
(ii) By extending its Commitment to make Swingline Loans and without further action on the part of the relevant Swingline Lender or the Liquidity Lenders, the relevant Swingline Lender hereby grants, and each Liquidity Lender hereby acquires from such Swingline Lender, a participation in such Swingline Lender’s Swingline Loans equal to such Liquidity Lender’s pro rata share (based on the respective Liquidity Commitments of the Liquidity Lenders) of the aggregate outstanding amount of Swingline Loans. In consideration and furtherance of the foregoing, each Liquidity Lender hereby absolutely and unconditionally agrees to pay to the Facility Agent, for the account of such Swingline Lender, such Liquidity Lender’s pro rata share of the Swingline Loans not repaid by the Borrower on the Swingline Loan Repayment Date.
(iii) Any Swingline Lender may, at any time in its sole and absolute discretion, request on behalf of the Borrower (and the Borrower hereby irrevocably authorizes each Swingline Lender to so request on its behalf) that each Liquidity Lender make a Liquidity Loan bearing interest at the Alternate Base Rate plus the Applicable Margin in an amount equal to such Liquidity Lender’s pro rata share of the amount of Swingline Loans then outstanding. Such request shall be deemed to be a Borrowing Request for purposes hereof and shall be made in accordance with the provisions of Section 2.02 without regard solely to the minimum amounts specified therein but subject to the satisfaction of the conditions set forth in Section 4.03. The applicable Swingline Lender shall furnish the Borrower with a copy of the applicable Borrowing Request promptly after delivering such Borrowing Request to the Facility Agent. Each Liquidity Lender shall make an amount equal to its pro rata share of the amount specified in such Borrowing Request available for the account of its Lending Office to the Facility Agent for the account of such Swingline Lender, by deposit to the Facility Agent’s account, in same date funds, not later than 11:00 A.M. on the day specified in such Borrowing Request, which shall be at least one Business Day following such Borrowing Request.
(iv) If for any reason any Swingline Loan cannot be responsible refinanced by a Liquidity Loan Borrowing as contemplated by Section 2.01(f)(iii) (including for or liable a failure to any Lender for determining whether (A) any representation or warranty of satisfy the Borrower conditions in connection with any Section 4.03), the request for a Liquidity Loan submitted by the applicable Swingline Lender as set forth in Section 2.01(f)(iii) shall be deemed to be a request by such Swingline Lender that each of the Liquidity Lenders fund its risk participation in the relevant Swingline Loan and each Liquidity Lender’s payment to the Facility Agent for the account of the applicable Swingline Lender shall be deemed payment in respect of such participation.
(v) If and to the extent that any Liquidity Lender shall not have made the amount of its pro rata share of such Swingline Loan available to the Facility Agent or funded its risk participation in accordance with the provisions of Section 2.01(f)(iii) or 2.01(f)(iv), such Liquidity Lender agrees to pay to the Facility Agent forthwith on demand such amount together with interest thereon, for each day from the date of the applicable Borrowing Request delivered by such Swingline Lender until the date such amount is correct paid to the Facility Agent, at the greater of the Federal Funds Rate and a rate determined by the Facility Agent in accordance with banking industry practices on interbank compensation.
(vi) Each Liquidity Lender acknowledges and agrees that its obligation to make Liquidity Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.01(f) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including (1) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (2) the occurrence or continuance of a Default or (B3) any Default other occurrence, event or Event condition, whether or not similar to any of Default exists or would result from the making of any such Swingline Loanforegoing; provided, however, that the Swingline Lender shall not each Liquidity Lender’s obligation to make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and Liquidity Loans pursuant to this Section 2.01(f) is continuing until such time as the Swingline Lender shall have received written notice from the Administrative Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate Revolving Commitment. For purposes of Section 2.10(a), each Swingline Loan shall be deemed to utilize only the Revolving Commitment of the Swingline Lender but not any other Lender (it being understood that the aggregate principal amount of Swingline Loans at any time outstanding may exceed the otherwise unutilized portion of the Revolving Commitment of the Swingline Lender).
(iv) On any Business Day, the Swingline Lender may, in its sole discretion, give notice subject to the RL Lenders that its outstanding Swingline Loans shall be funded with a Revolving Borrowing (provided that each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 9.01(f) or 9.01(g) or upon the exercise of any of the remedies provided in Section 9.02), in which case a Revolving Borrowing constituting Base Rate Loans (each such Revolving Borrowing, a "Mandatory Borrowing") shall be made no later than 11:00 a.m. (New York City time) on the immediately succeeding Business Day by all RL Lenders pro rata based on each RL Lender's Revolving Commitment Percentage, terms and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum borrowing denominations conditions set forth in Section 2.03(a), (ii) whether any 4.03. No funding of risk participations shall relieve or otherwise impair the obligation of the conditions precedent set forth in Section 5.02 is then satisfied and (iii) whether the borrowing limitations set forth in this Agreement are met or the amount of the Aggregate Revolving Commitment then in effect (including the fact that the Aggregate Revolving Commitment may have been terminated). In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (includingBorrower to repay Swingline Loans, without limitation, together with interest as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such assignment of the outstanding Swingline Loans as shall be necessary to cause the RL Lenders to share in such Swingline Loans ratably based upon their respective Revolving Commitment Percentages, provided that all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the RL Lender purchasing same from and after such date of purchase. The failure of any RL Lender to pay such amount to the Swingline Lender shall not relieve any other RL Lender of its obligation to make the payment to be made by itherein.
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