Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint. (b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply). (i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing. (ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Goodman Global Group, Inc.), Revolving Credit Agreement (Goodman Sales CO)
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each from the Closing Date and until the Commitment Termination Date (i) Lender severally agrees to make a loan or loans available to Borrower advances (each, a “Revolving Credit LoanAdvance”) in an aggregate outstanding amount not to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto Borrowing Availability, and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, Borrower may at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and its request from time to time on borrow, repay and after the Closing Date and prior to the reborrow under this Section 1.1. The Revolving Credit Maturity DateLoan shall be evidenced by, (iv) may, at the option of the Borrower, and be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed repayable in accordance with the provisions hereof. On terms of, the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several Note and not jointthis Agreement.
(b) Each Borrower shall request each Revolving Credit Advance by written notice to Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate substantially in the form of such Exhibit A (each a “Notice of Revolving Credit Advance”) given no later than 11:00 a.m. New York City time on the Business Day of the proposed advance. Lender shall be fully protected under this Agreement in relying upon, and shall be entitled to make such Loan; provided that rely upon, (i) any exercise Notice of such option shall not affect the obligation of the Borrower Revolving Credit Advance believed by Lender to repay such Loan be genuine, and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation assumption that the Persons making electronic requests or executing and delivering a Notice of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such LenderAdvance were duly authorized, (E) shall not, after giving effect thereto and to unless the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 responsible individual acting thereon for Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice actual knowledge to the Lenders, with a copy contrary. As an accommodation to the Borrower, that all then-outstanding Swingline Loans shall be funded with Lender may permit telephonic, electronic, or facsimile requests for a Borrowing of Revolving Credit LoansAdvance and electronic or facsimile transmittal of instructions, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowingauthorizations, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given agreements or reports to the Lenders Lender by the Swingline Borrower. Unless Borrower specifically directs Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline not to accept or act upon telephonic, facsimile or electronic communications from Borrower, Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot shall have no liability to Borrower for any reason be made on the date otherwise required above (including loss or damage suffered by Borrower as a result of Lender’s honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically and purporting to have been sent to Lender by Borrower and Lender shall have no duty to verify the commencement origin of a proceeding under any such communication or the Bankruptcy Code in respect identity or authority of the Borrower), each Person sending it.
(c) In making any Loan hereunder Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary entitled to cause each such rely upon the most recent Borrowing Base Certificate delivered to Lender by Borrower and other information available to share in such Swingline Loans ratably based upon their respective Lender. Lender shall be under no obligation to make any further Revolving Credit Commitment Percentages; Advance or incur any other Obligation if Borrower shall have failed to deliver a Borrowing Base Certificate to Lender by the time specified in Section 4.1(e). At Lender’s option, all principal, interest, fees, costs, expenses and other charges provided that all principal and interest payable on such Swingline Loans shall for in this Agreement or the other Loan Documents may be for the account of the Swingline Lender until the date the respective participation is purchased and, charged directly to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date loan account(s) of purchaseBorrower maintained by Lender.
Appears in 2 contracts
Sources: Loan and Security Agreement (Charys Holding Co Inc), Loan and Security Agreement (Charys Holding Co Inc)
Loans. (a) Subject to and upon U.S. Dollar Committed Loans. Each Lender with a U.S. Dollar Commitment severally agrees, on the terms and conditions herein set forthforth herein, each Lender severally agrees to make a loan or loans (each, each a “Revolving Credit U.S. Dollar Committed Loan”) in Dollars to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and Company from time to time on and any Business Day during the Availability Period in an aggregate amount not to exceed such Lender’s U.S. Dollar Commitment at such time; provided, however, that after the Closing Date and prior giving effect to the Revolving Credit Maturity Dateany Committed Borrowing under this Section 2.01(a), (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise the Outstanding Amount of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Committed Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii)Bid Loans, (C) Swing Line Loans and L/C Obligations shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2Aggregate Commitments, (ii) whether any conditions specified in Section 7 are then satisfiedthe aggregate Outstanding Amount of Committed Loans, Swing Line Loans and L/C Obligations under the U.S. Dollar Tranche shall not exceed the Applicable Sublimit and (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment aggregate Outstanding Amount of the Swingline U.S. Dollar Committed Loans of any Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result plus such Lender’s Applicable U.S. Dollar Percentage of the commencement Outstanding Amount of a proceeding under the Bankruptcy Code in respect all U.S. Dollar L/C Obligations, plus such Lender’s Applicable U.S. Dollar Percentage of the BorrowerOutstanding Amount of all Domestic Swing Line Loans shall not exceed such Lender’s U.S. Dollar Commitment. Within the limits of each Lender’s U.S. Dollar Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01(a), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse prepay under Section 2.06, and reborrow under this Section 2.01(a). U.S. Dollar Committed Loans may be Base Rate Loans or warranty) such participation of the outstanding Swingline Loans Eurocurrency Rate Loans, as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; further provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseherein.
Appears in 2 contracts
Sources: Credit Agreement (Host Hotels & Resorts L.P.), Credit Agreement (Host Hotels & Resorts, Inc.)
Loans. (a) Subject to and upon the terms and conditions of this Agreement and in reliance upon the representations and warranties of each Borrower herein set forth, each Lender Bank hereby severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) lend to the BorrowerBorrowers from time to time during the period from and including the Effective Date to but not including the Termination Date its pro rata Share of the Total Commitment. Each Bank's Commitment and the Total Commitment shall expire in full on the Termination Date. Amounts borrowed under this Section 2.01(a) may, which Revolving Credit subject to the limitations set forth in this Agreement, be repaid and, up to but excluding the Termination Date, be reborrowed. The Syndicated Loans and all other amounts owed hereunder with respect to the Syndicated Loans shall be paid in full no later than the Termination Date. Borrowings on any Funding Date with respect to a Syndicated Loan under this Section 2.01(a) shall be in Dollars, or in the requested Alternative Currency, in an aggregate minimum amount of $10,000,000 (or the Currency Equivalent thereof in any Alternative Currency) and integral multiples, in the case of Loans denominated in Dollars, of $1,000,000 in excess of that amount and, in the case of Loans denominated in an Alternative Currency, in integral multiples of 1,000,000 units or, in either case, if less, the unutilized amount of the Total Commitment. Notwithstanding the foregoing, (i) shall not exceed no Syndicated Loan may be borrowed by any Borrower if the Revolving Credit Commitment aggregate principal amount of such Lender (after giving effect thereto and to all Loans outstanding hereunder denominated in Dollars together with the application Currency Equivalent in Dollars of the proceeds thereof), (ii) shall notall Loans denominated in Alternative Currencies, after giving effect thereto and to the application of the proceeds thereofLoan so requested and all other Loans then requested which have not yet been funded, at any time result in shall exceed the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan effect and (ii) no Syndicated Loan may be borrowed by any Borrower in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to an Alternative Currency if the Borrower resulting therefrom (which obligation Currency Equivalent in Dollars of the Lender shall not require it to take, or refrain from taking, actions that it determines would result aggregate principal amount of all Syndicated Loans outstanding hereunder denominated in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall notAlternative Currencies, after giving effect thereto and to the application Loan so requested and all other Loans then requested which have not yet been funded, shall exceed $200,000,000. For purposes of determining (A) whether the proceeds thereof, result at making of any time Borrowing will cause the outstanding aggregate principal amount of Loans denominated in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance Dollars together with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid Currency Equivalent in full. 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 of (x) rescission Dollars of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default Loans denominated in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice Alternative Currencies to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in exceed the Total Commitment after or (B) whether the making of any such Swingline Loans were made. In Loan in an Alternative Currency will cause the event that, Currency Equivalent in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation Dollars of the outstanding Swingline aggregate principal amount of Loans as shall be necessary denominated in Alternative Currencies to cause each exceed $200,000,000, the Administrative Agent will make such Lender to share determinations three (3) Business Days in advance of a proposed Borrowing consisting of Eurocurrency Rate Loans and/or Competitive Bid LIBOR Loans and one (1) Business Day in advance of a proposed Borrowing consisting of Base Rate Loans and/or Competitive Bid Absolute Rate Loans calculating the Currency Equivalent of any Loan denominated in an Alternative Currency for purposes of such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable a determination at the rate of exchange in effect on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasedate.
Appears in 2 contracts
Sources: Credit Agreement (Textron Inc), Credit Agreement (Textron Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forth, contained herein:
(i) each Lender severally (and not jointly) agrees to make a loan its Pro Rata Share of Revolving Loans to Borrowers from time to time in amounts requested by any Borrower (or loans (eachAdministrative Borrower on behalf of Borrowers), a “provided, that, after giving effect to any such Revolving Loan, the principal amount of the Revolving Loans, Swing Line Loans and Letter of Credit Loan”) Obligations outstanding with respect to the Borrower, which Revolving Credit Loans (i) all Borrowers shall not exceed the Revolving lesser of (A) the Borrowing Base at such time or (B) the Maximum Credit Commitment at such time; and
(ii) the Swing Line Lender agrees that it will make loans (“Swing Line Loans”) to Borrowers from time to time in amounts requested by any Borrower (or Administrative Borrower on behalf of such Lender (Borrowers) up to the aggregate amount outstanding equal to the Swing Line Loan Limit, provided, that, after giving effect thereto to any such Swing Line Loan the aggregate principal amount of the Revolving Loans, Swing Line Loans and Letter of Credit Obligations outstanding with respect to all Borrowers shall not exceed the lesser of (A) the Borrowing Base at such time, or (B) the Maximum Credit at such time.
(b) On the terms and subject to the application conditions hereof, each Borrower (or Administrative Borrower on behalf of the proceeds thereof)Borrowers) may from time to time borrow, (ii) prepay and reborrow Revolving Loans and Swing Line Loans. No Lender shall notbe required to make any Revolving Loan, if, after giving effect thereto the aggregate outstanding principal amount of all Revolving Loans of such Lender, together with such Lender’s Pro Rata Share of the aggregate amount of all Swing Line Loans and Letter of Credit Obligations, would exceed such Lender’s Commitment. Swing Line Lender shall not be required to make Swing Line Loans, if, after giving effect thereto, the aggregate outstanding principal amount of all Swing Line Loans would exceed the then existing Swing Line Loan Limit. Each Swing Line Loan shall be subject to all of the terms and conditions applicable to other Base Rate Loans funded by the Lenders constituting Revolving Loans, except that all payments thereon shall be payable to the application Swing Line Lender solely for its own account. All Revolving Loans and Swing Line Loans shall be subject to the settlement among Lenders provided for in Section 6.11 hereof.
(c) Upon the making of a Swing Line Loan or any Revolving Loan by Agent as provided in Section 6.11, without further action by any party hereto, each Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Swing Line Lender or Agent, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Pro Rata Share in such Swing Line Loan or Revolving Loan. To the extent that there is no settlement in accordance with Section 6.11 below, the Swing Line Lender or Agent, as the case may be, may at any time, require the Lenders to fund their participations. From and after the date, if any, on which any Lender has funded its participation in any Swing Line Loan, Special Agent Advance or Revolving Loan, Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments of principal and interest received by Agent in respect of such Swing Line Loan, Special Agent Advance or Revolving Loan.
(d) The aggregate amount of the proceeds thereofRevolving Loans, the Swing Line Loans and the Letter of Credit Obligations outstanding at any time result shall not exceed the least of (i) the Maximum Credit, (ii) except in Agent’s discretion pursuant to Section 12.8, the Borrowing Base or (iii) the amount that constitutes “Permitted Debt” under clause (i) of the definition of that term in the Total Senior Notes Indenture as in effect on the date hereof.
(e) In the event that (i) the aggregate amount of the Revolving Loans, the Swing Line Loans and the Letter of Credit Outstandings Obligations outstanding at such any time exceed the Maximum Amount then Credit, or (ii) except as otherwise provided herein, the aggregate principal amount of the Revolving Loans, the Swing Line Loans and Letter of Credit Obligations outstanding exceed the Borrowing Base, such event shall not limit, waive or otherwise affect any rights of Agent or Lenders in effectsuch circumstances or on any future occasions and Borrowers shall, (iii) shall upon demand by Agent, which may be made at any time or from time to time, immediately repay to Agent the entire amount of any such excess(es) for which payment is demanded.
(f) Any Borrower (or Administrative Borrower on behalf of such Borrower) may request a Revolving Loan borrowing by written notice (or telephone notice promptly confirmed in writing which confirmation may be by fax) to Agent not later than 12:00 p.m. on the Business Day of the requested borrowing in the case of Base Rate Loans, and on the third Business Day prior to the date of the requested borrowing in the case of Eurodollar Rate Loans. Each such request for borrowing shall be irrevocable, and shall specify (i) that a Revolving Loan is requested, (ii) the date of the requested borrowing (which shall be a Business Day), (iii) the aggregate principal amount to be borrowed, (iv) whether the borrowing shall be comprised of Base Rate Loans, Eurodollar Rate Loans or a combination thereof, and if Eurodollar Rate Loans are requested, the Interest Period(s) therefor. If such Borrower shall fail to specify in any such notice of borrowing (A) an applicable Interest Period in the case of a Eurodollar Rate Loan, then such notice shall be deemed to be a request for an Interest Period of one month, or (B) the type of Revolving Loan requested, then such notice shall be deemed to be a request for a Base Rate Loan hereunder. Agent shall give notice to each Lender promptly after receipt of such notice by the Agent, of each notice of borrowing, the contents thereof and each such Lender’s share thereof.
(g) Each Borrower (or Administrative Borrower on behalf of such Borrower) may from time to time request Eurodollar Rate Loans or may request that Base Rate Loans be converted to Eurodollar Rate Loans or that any existing Eurodollar Rate Loans continue for an additional Interest Period. Such request from a Borrower (or Administrative Borrower on and after behalf of such Borrower) shall specify the Closing Date and prior amount of the Eurodollar Rate Loans or the amount of the Base Rate Loans to be converted to Eurodollar Rate Loans or the amount of the Eurodollar Rate Loans to be continued (subject to the Revolving Credit Maturity Date, limits set forth below) and the Interest Period to be applicable to such Eurodollar Rate Loans (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans if it does not specify such Interest Period shall be repaid in fulldeemed to be a one (1) month period). The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forthcontained herein, the Swingline Lender in its individual capacity agrees, at any time and three (3) Business Days after receipt by Agent of such a request from time to time a Borrower (or Administrative Borrower on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the behalf of such Borrower), which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid telephonic (and reborrowed followed by a confirmation in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline writing if requested by Agent) such Eurodollar Rate Loans shall be repaid in full. The Swingline Lender made or Base Rate Loans shall not make any Swingline Loan after receiving a written notice from the Borrower be converted to Eurodollar Rate Loans or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time Eurodollar Rate Loans shall continue, as the Swingline Lender shall have received written notice of case may be; provided, that, (xi) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such no Default or Event of Default shall exist or have occurred and be continuing, (ii) no Borrower or Administrative Borrower shall have sent any notice of termination of this Agreement, (iii) such Borrower (or Administrative Borrower on behalf of such Borrower) shall have complied with such customary procedures as are established by Agent and specified by Agent to Administrative Borrower from time to time for requests by Borrowers for Eurodollar Rate Loans, (iv) no more than ten (10) Interest Periods may be in effect at any one time, (v) the aggregate amount of the Eurodollar Rate Loans must be in an amount not less than $1,000,000 or in integral multiples of $100,000 in excess thereof, and (vi) Agent and each Lender shall have determined that the Interest Period or Adjusted Eurodollar Rate is available to Agent and such Lender and can be readily determined as of the date of the request for such Eurodollar Rate Loan by such Borrower. Any request by or on behalf of a Borrower for Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans or to continue any existing Eurodollar Rate Loans shall be irrevocable. All Swing Line Loans shall be Base Rate Loans and shall not be entitled to be converted to Eurodollar Rate Loans.
(h) Any Eurodollar Rate Loans shall automatically convert to Base Rate Loans upon the last day of the applicable Interest Period, unless Agent has received a request to continue such Eurodollar Rate Loan at least three (3) Business Days prior to such last day for an Interest Period specified in such notice in accordance with the provisions terms hereof and Borrowers are entitled to such Eurodollar Rate Loan under the terms hereof. Any Eurodollar Rate Loans shall, at Agent’s option, upon notice by Agent to Administrative Borrower, be subsequently converted to Base Rate Loans in the event that this Agreement shall terminate or shall not be renewed. Borrowers shall pay to Agent, for the benefit of Section 13.1 Lenders, upon demand by Agent (or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender Agent may, in at its sole discretionoption, give notice charge any loan account of any Borrower) any amounts required to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing compensate any Lender or Participant for any loss (excluding loss of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Timeanticipated profits), cost or otherwiseexpense incurred by such person, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement conversion of a proceeding under the Bankruptcy Code in respect Eurodollar Rate Loans to Base Rate Loans pursuant to any of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseforegoing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Freedom Group, Inc.), Loan and Security Agreement (Freedom Group, Inc.)
Loans. (a) Subject to and upon the terms and conditions herein set forthforth herein, each Initial Lender severally agrees to make a single term loan or loans (each, a an “Revolving Credit Initial Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time Borrower on and after the Closing Date in the amount of such Initial Lender’s Commitment. The Commitments are not revolving in nature and prior to the Revolving Credit Maturity Date, (iv) may, shall terminate at the option close of business on the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Closing Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity severally agrees, at any time and from time to time on and after if the Closing Date and Initial Loans have not been repaid prior to the Swingline Initial Maturity Date, to make that the then outstanding principal amount of each of its Initial Loans shall be automatically converted into a loan or loans (eachindividually, a an “Swingline Extended Loan” and collectively, the “Extended Loans”) to the BorrowerBorrower on the Initial Maturity Date in an aggregate principal amount equal to the then outstanding principal amount of such Initial Loan or Loans upon satisfaction of the following conditions: (i) no Default shall have occurred and be continuing; (ii) the Borrower shall have paid, which Swingline or caused to be paid, in full all fees then due pursuant to Section 2.06; (iii) any Note requested pursuant to Section 2.08 to evidence Extended Loans shall have been duly issued; and (Aiv) no order, decree or injunction from any Governmental Authority enjoining the conversion of any Initial Loan into an Extended Loan shall be ABR in effect. Upon the conversion of the Initial Loans into Extended Loans, (B) each Lender shall have the benefit cancel on its records a principal amount of the provisions Initial Loans held by such Lender corresponding to the principal amount of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any Extended Loans issued to such Lender, which corresponding principal amount of the Revolving Credit Commitment Initial Loans shall be satisfied by the conversion of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed Initial Loans into Extended Loans in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of this Section 13.1 or that such Default or Event of Default is no longer continuing2.01(b).
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 2 contracts
Sources: Bridge Loan Agreement (Sandridge Energy Inc), Bridge Loan Agreement (Sandridge Energy Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make (or in the case of any Rollover Lender (as defined in the First Incremental Agreement) on the First Incremental Agreement Effective Date, be deemed to make) (or in the case of any Rollover Lender (as defined in the Second Incremental Agreement) on the Second Incremental Agreement Effective Date, be deemed to make) a loan or loans (each, a an “Revolving Credit Initial Term Loan”) to the Borrower, which Revolving Credit Initial Term Loans (iiA) shall not exceed exceed, for any such Lender, the Revolving Credit Initial Term Loan Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof)Lender, (iiiiB) shall notnot exceed, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate, the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effectInitial Term Loan Commitment, (iiiiiiC) shall be made at any time and from time to time (x) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (a) of the definition of Initial Term Loan Commitments, on and after the Closing Date and prior to the Revolving Credit Maturity Date, (ivy) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (b) of the definition of Initial Term Loan Commitments, on the First Incremental Agreement Effective Date, and (z) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (c) of the definition of Initial Term Loan Commitments, on the Second Incremental Agreement Effective Date, (ivD) shall be denominated in Dollars, (vE) may, at the option of the Borrower, be incurred Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Initial Term Loans of the same Type and (vviF) may be repaid and reborrowed or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Revolving Credit Initial Term Loan Maturity Date, all outstanding Revolving Credit Initial Term Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 2 contracts
Sources: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.), Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Loans. (a) Subject to the terms and conditions hereof, each Term Lender severally agrees to make a term loan (such term loan, a “Term Loan” and, collectively, the “Term Loans”) to the Borrower on the Effective Date in an amount not to exceed the amount of the Term Loan Commitment of such Term Lender. Such Term Loan shall (i) be denominated in Dollars and (ii) except as hereinafter provided, shall, at the option of the Borrower, be maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that except as otherwise specifically provided in Section 2.10(b), all Term Loans comprising the same Borrowing shall at all times be of the same Type. Once repaid, Term Loans may not be reborrowed.
(b) Subject to and upon the terms and conditions herein set forthforth herein, each Lender with a Revolving Loan Commitment severally agrees to make a loan or loans (eachmake, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and or after the Closing Effective Date and prior to the Revolving Credit Loan Maturity Date, a revolving loan or revolving loans (iveach, a “Revolving Loan” and, collectively, the “Revolving Loans”) mayto the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Base Rate Loans or Eurodollar Loans; , provided that except as otherwise specifically provided in Section 2.10(b), all Revolving Credit Loans made by each of the Lenders pursuant to comprising the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans shall at all times be of the same Type and Type, (viii) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (Civ) shall not exceed for any such Lender at any time outstanding the Swingline Commitmentthat aggregate principal amount which, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and when added to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 product of (x) rescission of all such notices from the party or parties originally delivering such notice or Lender’s RL Percentage and (y) the waiver aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, equals the Revolving Loan Commitment of such Default or Event of Default in accordance with the provisions of Section 13.1 or that Lender at such Default or Event of Default is no longer continuingtime.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 2 contracts
Sources: Amendment Agreement (Lee Enterprises, Inc), First Lien Credit Agreement (Lee Enterprises, Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forthforth herein, each Lender severally agrees to make a loan or (i) loans to the US Borrowers from time to time in US Dollars (eacheach such loan, a “Revolving Credit US Borrower Loan”) and (ii) loans to the BorrowerEuropean Borrower from time to time in Euros or US Dollars (each such loan, which Revolving Credit Loans a “European Borrower Loan”), in each case on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided, however, that after giving effect to any Borrowing, (i) the Total Outstandings shall not exceed the Revolving Credit Commitment lesser of such Lender (after giving effect thereto A) the Aggregate Commitments and to (B) the application of the proceeds thereof)Total Borrowing Base, and (ii) shall not, after giving effect thereto and to the application aggregate Outstanding Amount of the proceeds thereofLoans of any Lender, at plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, shall not exceed such Lender’s Commitment. In no event shall Lenders have any time result in obligation to honor a request for (1) a US Borrower Loan if the Total Revolving unpaid balance of US Borrower Loans and L/C Obligations with respect to US Letters of Credit Outstandings outstanding at such time (including the requested US Borrower Loan) would exceed the Maximum Amount then in effectlesser of (x) the Total US Sublimit and (y) the US Borrowing Base or (2) a European Borrower Loan if the unpaid balance of European Borrower Loans and L/C Obligations with respect to European Letters of Credit outstanding at such time (including the requested European Borrower Loan) would exceed the lesser of (x) the Total European Sublimit and (y) the European Borrowing Base. Within the limits of each Lender’s Commitment, (iii) shall and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under Section 2.04, and reborrow under this Section 2.01. Loans may be made at any time and from time to time on and after (a) in the Closing Date and prior to the Revolving Credit Maturity Date, (iv) maycase of US Borrower Loans, at the option of the US Borrowers, as US Base Rate Loans or Eurocurrency Rate Loans, in each case in US Dollars and (b) in the case of European Borrower Loans, at the option of the European Borrower, be incurred and maintained asas Eurocurrency Rate Loans in US Dollars or Euros, and/or converted into, ABR Loans or Eurodollar Loans; in each case as further provided that all Revolving Credit Loans made by each of the Lenders pursuant herein. In addition to the same Borrowing shallforegoing, unless otherwise specifically provided herein, consist entirely of Revolving Credit certain Loans of the same Type and (v) may be repaid and reborrowed made to the Borrowers to the extent they are deemed to be made in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(iiSections 2.02(c), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time2.02(g), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower2.03(c)(i)(B), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal 2.03(c)(ii), 3.02, 3.03 and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase3.07.
Appears in 2 contracts
Sources: Credit Agreement (Imation Corp), Credit Agreement (Imation Corp)
Loans. (a) Subject Each Lender severally agrees to and upon make or continue, as applicable, on the terms and subject to the conditions herein set forthof this Loan Agreement, loans (individually, a “Loan” and, collectively, the “Loans”) to the Borrowers in Dollars, from and including the Effective Date to but not including the Termination Date in an aggregate principal amount at any one time outstanding up to but not exceeding the lesser of (i) such Lender’s Commitment as then in effect and (ii) such Lender’s Commitment Percentage of the Borrowing Base as in effect from time to time. Notwithstanding the foregoing, MSB shall fund 100% of the first $400,000,000 in principal amount of Loans at any time outstanding; provided, that any failure by MSB to fund any such principal amount shall not relieve MSMCI of its commitment to make Loans to the Borrowers in accordance with this Loan Agreement.
(b) On the Effective Date, each Lender severally agrees to make a loan or loans (eachcontinue, as applicable, on the terms and subject to the conditions of this Loan Agreement, a “Revolving Credit Loan”) Loan to the BorrowerBorrowers in an aggregate principal amount equal to the “Initial Advance Amount” set forth on Schedule 4 hereto in respect of such Lender, the proceeds of which Revolving Credit Loans shall be applied as full and complete satisfaction of all amounts owing by the Borrowers under the Existing Loan Agreement.
(c) Subject to the terms and conditions of this Loan Agreement, during such period the Borrowers may borrow, repay and reborrow hereunder; provided, that notwithstanding the foregoing, no Lender shall have any obligation to make Loans to the Borrowers in excess of the lesser of (i) shall not exceed the Revolving Maximum Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) the Borrowing Base and, if a Tangible Net Worth Trigger Event shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result have occurred or in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect event the obligation of the Borrower Lenders to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs make Loans to the Borrower resulting therefrom (which obligation of the Lender Borrowers shall not require it to takeotherwise be terminated as permitted hereunder, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 no Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees further obligation to make such Revolving Credit additional 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasehereunder.
Appears in 2 contracts
Sources: Master Loan and Security Agreement (New Century Financial Corp), Master Loan and Security Agreement (New Century Financial Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower, which Initial Term Loans (A) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (B) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (C) shall be denominated in Dollars, (E) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Term SOFR Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (F) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(i) Subject to and upon the terms and conditions set forth herein and in the Restatement Agreement, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in U.S. Dollars, which Revolving Credit Loans (iA) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (B) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof), result in such Lender’s Revolving Credit Exposure at such time exceeding such ▇▇▇▇▇▇’s Revolving Credit Commitment at such time, (iiC) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiD) shall be made at any time and from time to time on and after the Closing Restatement Agreement Effective Date and prior to the Revolving Credit Maturity Date; provided that the amount of Revolving Credit Loans that may be borrowed on the Restatement Agreement Effective Date shall be limited to an amount sufficient to fund certain earnout payments of the Borrower, in an amount no greater than $50,000,000, (ivE) may, may at the option of the Borrower, Borrower be incurred Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Term SOFR Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vF) may be repaid and reborrowed in accordance with the provisions hereof. .
(ii) On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Term SOFR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Term SOFR Loan; provided that (i) any exercise of such option shall not affect the obligation of the applicable Borrower to repay such Term SOFR Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the applicable Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline each Cashless Option Term B-1 Lender in severally agrees to exchange its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make Existing Initial Term Loan for a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline like principal amount of Refinancing Term B-1 Loans (Aor such lesser amount as determined by the Amendment No. 2 Arrangers) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline LoansAmendment No. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.2
Appears in 2 contracts
Sources: Credit Agreement (Baldwin Insurance Group, Inc.), Credit Agreement (Baldwin Insurance Group, Inc.)
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each from the Closing Date and until the Commitment Termination Date (i) Lender severally agrees (A) to make a loan or loans available advances (each, a “"Revolving Credit Loan”Advance") and (B) to incur Letter of Credit Obligations, in an aggregate outstanding amount for any Borrower not to exceed the Borrowing Availability of such Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and Borrower may from time to time on borrow, repay and after the Closing Date reborrow, and prior may cause Lender to the Revolving incur Letter of Credit Maturity DateObligations, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointunder this Section 1.1.
(b) Each Borrower shall request each Revolving Credit Advance by written notice to Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate substantially in the form of such Exhibit A (each a "Notice of Revolving Credit Advance") given no later than 11:00 A.M. (Los Angeles time) on the Business Day of the proposed advance. Lender shall be fully protected under this Agreement in relying upon, and shall be entitled to make such Loan; provided that rely upon, (i) any exercise Notice of such option shall not affect the obligation of the Borrower Revolving Credit Advance believed by Lender to repay such Loan be genuine, and (ii) in exercising such optionthe assumption that the Persons making electronic requests or executing and delivering a Notice of Revolving Credit Advance were duly authorized, such unless the responsible individual acting thereon for Lender shall use its reasonable efforts to minimize any increased costs have actual knowledge to the contrary. As an accommodation to Borrowers, Lender may permit telephonic, electronic, or facsimile requests for a Revolving Credit Advance and electronic or facsimile transmittal of instructions, authorizations, agreements or reports to Lender by any Borrower. Unless each Borrower resulting therefrom (which obligation specifically directs Lender in writing not to accept or act upon telephonic, facsimile or electronic communications from any Borrower, Lender shall have no liability to any Borrower for any loss or damage suffered by any Borrower as a result of Lender's honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically and purporting to have been sent to Lender by any Borrower and Lender shall have no duty to verify the origin of any such communication or the identity or authority of the Lender Person sending it. The Revolving Credit Loan shall not require it to takebe evidenced by, or refrain from taking, actions that it determines would result and be repayable in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon accordance with the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lenderof, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto Note and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuingthis Agreement.
(iic) On In making any Business Day, the Swingline Loan hereunder Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with entitled to rely upon the most recent Borrowing Base Certificate delivered to Lender by such Borrower and other information available to Lender. Lender shall be under no obligation to make any further Revolving Credit Advance to any Borrower or incur any other Obligation if any Borrower shall have failed to deliver a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given Base Certificate to the Lenders Lender by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing time specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower4.1(b), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 2 contracts
Sources: Loan and Security Agreement (Harmony Holdings Inc), Loan and Security Agreement (Intelefilm Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower, which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in Dollars, (iv) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(i) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in U.S. Dollars, which Revolving Credit Loans (iA) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (B) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof), result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiC) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiD) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity DateDate (provided that notwithstanding the foregoing, the aggregate amount of all Revolving Credit Loans made on the Closing Date shall not exceed the Initial Revolving Borrowing Amount), (ivE) may, may at the option of the Borrower, Borrower be incurred Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vF) may be repaid and reborrowed in accordance with the provisions hereof. .
(ii) On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Eurodollar Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Eurodollar Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the BorrowerBorrower in U.S. Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(d)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, and (GE) may be repaid and reborrowed in accordance with the provisions hereofhereof and (F) shall mature no later than the date ten Business Days after such Swingline Loan is made. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from either the Borrower or the Required Lenders Administrative Agent 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 of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one same Business Day’s Days’ notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code any Debtor Relief Law in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing the same from and after such date of purchase.
(iii) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more applicable Revolving Credit Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit Lender in its capacity as a lender of Swingline Loans hereunder.
(iv) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) the Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 2 contracts
Sources: Credit Agreement (Snap One Holdings Corp.), Credit Agreement (MultiPlan Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make (or in the case of any Rollover Lender (as defined in the First Incremental Agreement) on the First Incremental Agreement Effective Date, be deemed to make) a loan or loans (each, an “Initial Term Loan”) to the Borrower, which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made (x) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (a) of the definition of Initial Term Loan Commitments, on the Closing Date, and (y) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (b) of the definition of Initial Term Loan Commitments, on the First Incremental Agreement Effective Date, (iv) shall be denominated in Dollars, (ivv) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (vvi) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(i) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in U.S. Dollars, which Revolving Credit Loans (iA) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (B) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof), result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiC) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiD) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity DateDate (provided that notwithstanding the foregoing, the aggregate amount of all Revolving Credit Loans made on the Closing Date shall not exceed the Initial Revolving Borrowing Amount), (ivE) may, may at the option of the Borrower, Borrower be incurred Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vF) may be repaid and reborrowed in accordance with the provisions hereof. .
(ii) On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Eurodollar Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Eurodollar Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the BorrowerBorrower in U.S. Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(d)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, and (GE) may be repaid and reborrowed in accordance with the provisions hereofhereof and (F) shall mature no later than the date ten Business Days after such Swingline Loan is made. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from either the Borrower or the Required Lenders Administrative Agent 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 of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one same Business Day’s Days’ notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code any Debtor Relief Law in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing the same from and after such date of purchase.
(iii) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more applicable Revolving Credit Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit Lender in its capacity as a lender of Swingline Loans hereunder.
(iv) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) the Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 2 contracts
Sources: Incremental Agreement (Snap One Holdings Corp.), Incremental Agreement (MultiPlan Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forthforth herein, each Lender having a Revolving Commitment severally agrees to make a loan or loans (eacheach such loan, a “"Revolving Credit Loan”") to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and Borrower from time to time time, on and after any Business Day during -------------- the Closing Date and prior Availability Period, in an aggregate amount not to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment amount of such Lender's Revolving Commitment; provided, (E) shall nothowever, -------- ------- that after giving effect thereto and to any Borrowing, (i) the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding shall not exceed the Maximum Amount then in effectAggregate Revolving Commitments, and (Gii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender's ---- Revolving Pro Rata Share of the Outstanding Amount of all L/C Obligations, shall not exceed such Lender's Revolving Commitment. Within the limits of each Lender's Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section ------------ ------- 2.04, and reborrow under this Section 2.01. Revolving Loans may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity DateBase Rate ---- ------------ Loans or Eurodollar Rate Loans, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuingfurther provided herein.
(iib) On any Business Day, the Swingline Lender may, in its sole discretion, give notice Subject to the Lendersterms and conditions set forth herein, with each Lender having a copy Term Commitment severally agrees to the Borrower, that all then-outstanding Swingline Loans shall be funded with make a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans single term loan (each such Borrowingloan, a “Mandatory Borrowing”"Term Loan") shall be made to the Borrower on the same Business Day (provided that such notice is given Closing Date in an amount equal to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each --------- such Lender’s Revolving Credit Commitment Percentage, and the proceeds 's Term Commitment. Any Term Loan or portion thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing has been repaid may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasereborrowed.
Appears in 1 contract
Sources: Credit Agreement (Coinstar Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each from ----- the Closing Date and until the Commitment Termination Date (i) Lender severally agrees to make a loan or loans available to Borrower advances (each, a “"Revolving Credit Loan”Advance") in an aggregate outstanding amount not to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto Borrowing Availability, and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, Borrower may at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and its request from time to time on borrow, repay and after the Closing Date and prior to the reborrow under this Section 1.
1. The Revolving Credit Maturity DateLoan shall be evidenced by, (iv) may, at the option of the Borrower, and be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed repayable in accordance with the provisions hereof. On terms of, the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several Note and not jointthis Agreement.
(b) Each Borrower shall request each Revolving Credit Advance by written notice to Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate substantially in the form of such Exhibit A (each a "Notice of Revolving Credit Advance") given no later than 11:00 a.m. New York City time on the Business Day of the proposed advance. Lender shall be fully protected under this Agreement in relying upon, and shall be entitled to make such Loan; provided that rely upon, (i) any exercise Notice of such option shall not affect the obligation of the Borrower Revolving Credit Advance believed by Lender to repay such Loan be genuine, and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation assumption that the Persons making electronic requests or executing and delivering a Notice of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such LenderAdvance were duly authorized, (E) shall not, after giving effect thereto and to unless the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 responsible individual acting thereon for Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice actual knowledge to the Lenders, with a copy contrary. As an accommodation to the Borrower, that all then-outstanding Swingline Loans shall be funded with Lender may permit telephonic, electronic, or facsimile requests for a Borrowing of Revolving Credit LoansAdvance and electronic or facsimile transmittal of instructions, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowingauthorizations, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given agreements or reports to the Lenders Lender by the Swingline Borrower. Unless Borrower specifically directs Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline not to accept or act upon telephonic, facsimile or electronic communications from Borrower, Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot shall have no liability to Borrower for any reason be made on the date otherwise required above (including loss or damage suffered by Borrower as a result of Lender's honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically and purporting to have been sent to Lender by Borrower and Lender shall have no duty to verify the commencement origin of a proceeding under any such communication or the Bankruptcy Code in respect identity or authority of the Borrower), each Person sending it.
(c) In making any Loan hereunder Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary entitled to cause each such rely upon the most recent Borrowing Base Certificate delivered to Lender by Borrower and other information available to share in such Swingline Loans ratably based upon their respective Lender. Lender shall be under no obligation to make any further Revolving Credit Commitment Percentages; Advance or incur any other Obligation if Borrower shall have failed to deliver a Borrowing Base Certificate to Lender by the time specified in Section 4.1(b). At Lender's option, all principal, interest, fees, costs, expenses and other charges provided that all principal and interest payable on such Swingline Loans shall for in this Agreement or the other Loan Documents may be for the account of the Swingline Lender until the date the respective participation is purchased and, charged directly to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date loan account(s) of purchaseBorrower maintained by Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Charys Holding Co Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each from the Closing Date and until the Commitment Termination Date (i) Lender severally agrees (A) to make a loan or loans available advances (each, a “"Revolving Credit Loan”Advance") and (B) to the Borrowerincur Letter of Credit Obligations, which Revolving Credit Loans (i) shall in an aggregate outstanding amount not to exceed the Revolving Credit Commitment of such Lender (after giving effect thereto Borrowing Availability, and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, Borrower may at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and its request from time to time on borrow, repay and after the Closing Date reborrow, and prior may cause Lender to the Revolving incur Letter of Credit Maturity DateObligations, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointunder this Section 1.1.
(b) Each Borrower's Agent shall request each Revolving Credit Advance by written notice to Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate substantially in the form of such EXHIBIT A (each a "Notice of Revolving Credit Advance") given no later than 12:00 noon (New York time) on the Business Day of the proposed Revolving Credit Advance. Lender shall be fully protected under this Agreement in relying upon, and shall be entitled to make such Loan; provided that rely upon, (i) any exercise Notice of such option shall not affect the obligation of the Borrower Revolving Credit Advance believed by Lender to repay such Loan be genuine, and (ii) in exercising such optionthe assumption that the Persons making electronic requests or executing and delivering a Notice of Revolving Credit Advance were duly authorized, such unless the responsible individual acting thereon for Lender shall use its reasonable efforts to minimize any increased costs have actual knowledge to the contrary. As an accommodation to Borrower, Lender may permit telephonic or facsimile requests for a Revolving Credit Advance and electronic or facsimile transmittal of instructions, authorizations, agreements or reports to Lender by Borrower. Unless Borrower's Agent specifically directs Lender in writing not to accept or act upon telephonic, facsimile or electronic communications from Borrower, Lender shall have no liability to Borrower resulting therefrom (which obligation for any loss or damage suffered by Borrower as a result of Lender's honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically and purporting to have been sent to Lender by Borrower and Lender shall have no duty to verify the origin of any such communication or the identity or authority of the Lender Person sending it. The Revolving Credit Loan shall not require it to takebe evidenced by, or refrain from taking, actions that it determines would result and be repayable in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon accordance with the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lenderof, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto Note and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuingthis Agreement.
(iic) On In making any Business Day, the Swingline Loan hereunder Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with entitled to rely upon the most recent Borrowing Base Certificate delivered to Lender by Borrower's Agent and other information available to Lender. Lender shall be under no obligation to make any further Revolving Credit Advance or incur any other Obligation if Borrower's Agent shall have failed to deliver a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given Base Certificate to the Lenders Lender by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing time specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower4.1(b), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forthcontained in this Agreement, each Lender of the Lenders severally agrees to make a loan or loans (eachthat it will, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and or after the Closing Date and prior to continuing until the Revolving Credit Maturity Termination Date, extend loans (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by such loans from each of the Lenders pursuant hereinafter referred to as the "Loans") to the same Borrowing shallBorrower in an amount equal to each such Lender's Proportionate Share; provided however, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans that (A) the aggregate outstanding principal amount of the same Type Loans shall not exceed the lesser of (i) the Maximum Loan Amount or (ii) the Borrowing Base, and (vB) if either Lender ceases trading activities, dissolves or commences distribution of a material portion of its assets, then such Lender may, upon ninety (90) days advance notice, stop extending Loans to the Borrower and may demand payment on all Loans then outstanding to such Lender. All Loans shall be repaid and reborrowed made ratably by the Lenders in accordance with their Proportionate Shares. The Borrower shall set forth in the provisions hereofAging Receivable Report, delivered monthly pursuant to Section 5.1(c), the amount of Receivables which constitute Eligible Receivables, with separate indications for which such Receivables constitute Delinquent Receivables, Nonconforming Receivables and Nonconforming Insured Receivables. On The aggregate principal amount of the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder evidenced by the Notes and shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option payable in accordance with Section 2.5. Notwithstanding the foregoing, the Borrower shall not affect the obligation of the Borrower to repay such Loan request, and (ii) in exercising such option, such no Lender shall use its reasonable efforts have any obligation to minimize make, any increased costs Loans under this Agreement if, as a result thereof, the aggregate outstanding principal amount of all Loans, loans under the Lease Warehouse Facility, Certificates and any other loans, advances and other extensions of credit made or held by either Lender to the Borrower resulting therefrom (which obligation and/or its Affiliates) would exceed 25% of the Lender shall not require such Lender's "net assets" as such term is defined in such Lender's Articles of Association, it being understood that, with respect to takeGlobal, or refrain from taking, actions that it determines would result its investment in increased costs for which it Finance will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and included in the event of such request "net assets" for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit purposes of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuingforegoing sentence.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Loan and Security Agreement (Aegis Consumer Funding Group Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions set forth herein set forthand in the Ancillary Agreements, Laurus may make loans (the Swingline Lender in its individual capacity agrees, at any time and “Loans”) to the Companies from time to time on and after during the Closing Date and prior to Term which, in the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed aggregate at any time outstanding outstanding, will not exceed the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 lesser of (x) rescission of all such notices from the party or parties originally delivering such notice or Capital Availability Amount and (y) an amount equal to (I) the waiver of Accounts Availability minus (II) such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, reserves as Laurus may reasonably in its sole discretiongood faith judgment deem proper and necessary from time to time and of which Laurus gives the Companies five (5) Business Days prior written notice (provided, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or if an Event of Default has occurred and is continuing, no such prior notice shall be required) (ivthe “Reserves”). The lesser of the amounts derived at any time pursuant to clauses (x) and (y) of the date preceding sentence shall be referred to as the “Formula Amount.” The Companies shall, jointly and severally, execute and deliver to Laurus on the Closing Date the Note. The Companies hereby each acknowledge and agree that Laurus’ obligation to purchase the Note from the Companies on the Closing Date shall be contingent upon the satisfaction (or waiver by Laurus in its sole discretion) of the items and matters set forth in the closing checklist provided by Laurus to the Companies on or prior to the Closing Date. The Companies hereby each further acknowledge and agree that, immediately prior to each borrowing hereunder and immediately after giving effect thereto, the Companies shall be deemed to have certified to Laurus that at the time of each such proposed borrowing and also after giving effect thereto (i) there shall exist no Event of Default, (ii) all representations, warranties and covenants made by the Companies in connection with this Agreement and the Ancillary Agreements are true, correct and complete and (iii) all of each Company’s and its respective Subsidiaries’ covenant requirements under this Agreement and the Ancillary Agreements have been met. The Companies hereby agree to provide a certificate confirming the foregoing concurrently with each request for a borrowing hereunder.
(ii) The Companies acknowledge that Laurus must exercise reasonable discretion in all matters which may increase or decrease the advance percentages used in determining Accounts Availability, based either on the Companies’ past performance, or on its reasonable business prospects, and each of the Companies hereby consent to any such increases or decreases which may limit or restrict advances requested by the Companies.
(iii) If any interest, fees, costs or charges payable to Laurus hereunder are not paid when due, each of the Companies shall thereby be deemed to have requested, and Laurus is hereby authorized at its discretion to make and charge to the Companies’ account, a Loan as of such Mandatory Borrowing date in an amount equal to such unpaid interest, fees, costs or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasecharges.
Appears in 1 contract
Sources: Security Agreement (Kitty Hawk Inc)
Loans. Make advances, loans or extensions of credit to any Person, including any Parent, Subsidiary or Affiliate except with respect to (a) Subject the extension of commercial trade credit in connection with the sale of Inventory or services in the Ordinary Course of Business (b) loans to its employees in the Ordinary Course of Business not to exceed the aggregate amount of $100,000 at any time outstanding, (c) loans to other Borrowers provided that (1) such loans shall be evidenced by a demand note (collectively, the “Intercompany Notes”), which Intercompany Notes shall be in form and upon substance reasonably satisfactory to Agent and shall be pledged and delivered to Agent pursuant to the terms applicable Pledge Agreement as additional collateral security for the Obligations; (2) Borrowers shall record all intercompany transactions on their Books and conditions herein set forth, each Lender severally agrees Records in a manner reasonably satisfactory to make Agent; (3) the obligations of any Borrower under any such Intercompany Notes shall be subordinated to the Obligations of Borrowers hereunder in a manner reasonably satisfactory to Agent; (4) at the time any such intercompany loan or loans (each, advance is made by a “Revolving Credit Loan”) Borrower to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (any other Borrower and after giving effect thereto and to the application of the proceeds thereof)thereto, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) Borrowers shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type solvent and (v5) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such no Default or Event of Default would occur and be continuing after giving effect to any such proposed intercompany loan and (d) loans to Foreign Subsidiaries provided that (1) such loans shall be evidenced by Intercompany Notes, which Intercompany Notes shall be in accordance with form and substance reasonably satisfactory to Agent and shall be pledged and delivered to Agent pursuant to the provisions applicable Pledge Agreement as additional collateral security for the Obligations; (2) Borrowers shall record all intercompany transactions on their Books and Records in a manner reasonably satisfactory to Agent; (3) the obligations of Section 13.1 any Borrower under any such Intercompany Notes shall be subordinated to the Obligations of Borrowers hereunder in a manner reasonably satisfactory to Agent; (4) at the time any such intercompany loan or that advance is made by a Borrower to any Foreign Subsidiary and after giving effect thereto, such Borrowers shall be solvent; (5) no Default or Event of Default is would occur and be continuing after giving effect to any such proposed intercompany loan; and (6) no longer continuing.
(ii) On any Business DayUndrawn Availability Event has occurred or would result from such proposed intercompany loan; provided, the Swingline Lender mayfurther, however, if an Undrawn Availability Event has occurred, Agent, in its sole discretion, give notice may permit Borrowers to the Lenders, with a copy make loans to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing Foreign Subsidiaries pursuant to subclause (d) of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (this Section 7.5 provided that (x) after giving effect to any such notice loan, net advances to Foreign Subsidiaries are positive (i.e., the total amount of all advances made by Borrowers to Foreign Subsidiaries is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that less than the amount of funds paid or transferred by Foreign Subsidiaries to Borrowers) and (y) Agent has received from Borrowers a cash flow forecast in form and substance satisfactory to Agent in its sole discretion and Agent has notified Borrowers after reviewing such cash flow forecast that Borrowers may make such loans to Foreign Subsidiaries. Notwithstanding the Mandatory Borrowing may foregoing, with respect to intercompany loans made to Foreign Subsidiaries pursuant to clause (d) of this Section 7.5 that are existing on the Fourth Amendment Effective Date, the Intercompany Notes evidencing such intercompany loans shall not comply with be required to be delivered to Agent until the minimum amount for each Borrowing specified in Section 2.2, earlier of (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (ivx) the date of upon which any such Mandatory Borrowing Intercompany Notes are executed or (vy) any reduction the 90th day following the Fourth Amendment Effective Date unless such 90 day period is extended by the Agent in the Total Commitment after any such Swingline Loans were madeits sole discretion. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.Sixth Amendment 009125.0135:495627.5
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Geokinetics Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Amendment No. 5 Initial Term Lender severally agrees to make a loan or loans (each, a an “Revolving Credit Amendment No. 5 Initial Term Loan”) to the Borrower, which Revolving Credit Amendment No. 5 Initial Term Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Amendment No. 5 Initial Term Loan Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof)Amendment No. 5 Initial Term Lender, (ii) shall notnot exceed, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate, the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effectAmendment No. 5 Initial Term Loan Commitment, (iii) shall be made at any time and from time to time on and after the Closing Amendment No. 5 Effective Date and prior to the Revolving Credit Maturity Dateshall be denominated in Dollars, (iv) may, may at the option of the Borrower, Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar EurodollarSOFR Loans; provided that all Revolving Credit such Amendment No. 5 Initial Term Loans made by each of the Amendment No. 5 Initial Term Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Amendment No. 5 Initial Term Loans of the same Type and (v) may be repaid and reborrowed or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Revolving Credit Amendment No. 5 Initial Term Loan Maturity Date, all outstanding Revolving Credit Amendment No. 5 Initial Term Loans shall be repaid in full. The obligations of each Lender hereunder shall be several It is understood and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided agreed that (i) any exercise of such option shall not affect the obligation of Amendment No. 5 Initial Term Loans made on the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Amendment No. 5 Effective Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded at 99.75% of the principal amount thereof, and notwithstanding said discount all calculations hereunder with a Borrowing of Revolving Credit respect to such Amendment No. 5 Initial Term Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on including the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, accrual of interest and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount repayment or prepayment of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participationprincipal, shall be payable to based on 100% of the Lender purchasing same from and after such date of purchasestated principal amount thereof.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein of this Agreement and in reliance upon the representations and warranties of the Borrower set forthforth herein, each Lender Bank hereby severally agrees agrees, subject to the limitations set forth below with respect to the maximum amount of Loans permitted to be outstanding from time to time, to make a loan or loans (each, a “Revolving Credit Loan”) Loans to the Borrower, which Revolving Credit Borrower in an amount not exceeding its Pro Rata Share of the aggregate Commitments (as defined below) for the purposes identified in subsection 2.5. Each Bank's commitment to make Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application Borrower pursuant to this subsection 2.1(a) is hereby called its "Commitment" and such commitments of all Banks in the aggregate are herein called the "Commitments". The initial amount of each Bank's Commitment is set forth in Schedule I annexed hereto and the aggregate initial amount of all Commitments is $65,000,000. The amount of the proceeds thereof), (ii) Commitments shall not, after giving effect thereto be reduced by the amount of all reductions thereof required or otherwise made pursuant to subsections 4.1 and to 4.6 through the application date of determination. In no event shall the aggregate principal amount of the proceeds thereof, Loans from any Bank outstanding at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount amount of its Commitment then in effect. Each Bank's Commitment shall expire on the Termination Date and all Loans and all other amounts owed hereunder with respect to the Loans, (iii) the Commitments, or otherwise shall be paid in full no later than that date. All Loans under this Agreement shall be made at any time by the Banks simultaneously and from time proportionately to time on and after the Closing Date and prior to the Revolving Credit Maturity Datetheir respective Pro Rata Shares, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided it being understood that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans no Bank shall be repaid responsible for any default by any other Bank in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender that other Bank's obligation to make such Loan; provided that (i) any exercise of such option Loans hereunder nor shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may Bank be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower increased 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including decreased as a result of the commencement of a proceeding under the Bankruptcy Code default by any other Bank in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.other Bank's
Appears in 1 contract
Sources: Credit Agreement (St Joe Co)
Loans. Make advances, loans or extensions of credit to any Person, including any Parent, Subsidiary or Affiliate except with respect to (a) Subject the extension of commercial trade credit in connection with the sale of Inventory in the Ordinary Course of Business (b) loans to its employees in the Ordinary Course of Business not to exceed the aggregate amount of $100,000 at any time outstanding, (c) loans to other Borrowers provided that (1) such loans shall be evidenced by a demand note (collectively, the “Intercompany Notes”), which Intercompany Notes shall be in form and upon substance reasonably satisfactory to Agent and shall be pledged and delivered to Agent pursuant to the terms applicable Pledge Agreement as additional collateral security for the Obligations; (2) Borrowers shall record all intercompany transactions on their Books and conditions herein set forth, each Lender severally agrees Records in a manner reasonably satisfactory to make Agent; (3) the obligations of any Borrower under any such Intercompany Notes shall be subordinated to the Obligations of Borrowers hereunder in a manner reasonably satisfactory to Agent; (4) at the time any such intercompany loan or loans (each, advance is made by a “Revolving Credit Loan”) Borrower to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (any other Borrower and after giving effect thereto thereto, such Borrowers shall be solvent and to the application (5) no Default or Event of the proceeds thereof), (ii) shall not, Default would occur and be continuing after giving effect thereto to any such proposed intercompany loan and (d) loans to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at Foreign Subsidiaries provided that (1) such time exceed the Maximum Amount then in effect, (iii) loans shall be made at any time evidenced by Intercompany Notes, which Intercompany Notes shall be in form and from time substance reasonably satisfactory to time on Agent and after the Closing Date shall be pledged and prior delivered to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders Agent pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely applicable Pledge Agreement as additional collateral security for the Obligations; (2) Borrowers shall record all intercompany transactions on their Books and Records in a manner reasonably satisfactory to Agent; (3) the obligations of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans any Borrower under any such Intercompany Notes shall be repaid subordinated to the Obligations of Borrowers hereunder in full. The obligations of each Lender hereunder shall be several and not joint.
a manner reasonably satisfactory to Agent; (b4) Each Lender may at its option make the time any Eurodollar Loan such intercompany loan or advance is made by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the a Borrower to repay such Loan any Foreign Subsidiary and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereofthereto, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans Borrowers shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a solvent; (5) no Default or an Event of Default exists would occur and is be continuing after giving effect to any such proposed intercompany loan; and (6) no Undrawn Availability Event has occurred or would result from such proposed intercompany loan. Notwithstanding the foregoing, with respect to intercompany loans made to Foreign Subsidiaries pursuant to clause (d) of this Section 7.5 that are existing on the Fourth Amendment Effective Date, the Intercompany Notes evidencing such intercompany loans shall not be required to be delivered to Agent until such time as the Swingline Lender shall have received written notice earlier of (x) rescission of all the date upon which any such notices from the party or parties originally delivering such notice Intercompany Notes are executed or (y) the waiver of 90th day following the Fourth Amendment Effective Date unless such Default or Event of Default in accordance with 90 day period is extended by the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, Agent in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.” Fourth Amendment 009125.0135\479564
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Geokinetics Inc)
Loans. Subject to the terms and provisions of this Agreement, Lender will make such loans to Borrower as from time to time Lender elects to make which are secured by Borrower's Collateral and the proceeds thereof. The aggregate unpaid principal of all such loans outstanding at any one time shall not exceed the lesser of (a) Subject One Million Two Hundred Fifty Thousand (U.S. $1,250,000.00) or (b) eighty percent (80%) of the unpaid face amount of (i) Qualified Accounts that are non-project Qualified Accounts and (ii) Qualified Accounts that are project Qualified Accounts, as defined below, (or such other percentages thereof as may from time to time be fixed by the Lender upon notice to Borrower), plus fifty percent (50%) of the cost or market value, whichever is lower, of all Eligible Inventory, as defined below, (hereinafter called the "Inventory Value"), but in no event shall (A) Inventory Value be in excess of Three Hundred Thousand Dollars (U.S. $300,000.00) and (B) Inventory Value and Qualified Accounts that are project Qualified Accounts be in excess of Four Hundred Fifty Thousand Dollars (U.S. $450,000.00). The sum produced by applying at any given time the then prevailing percentages to the Inventory Value and to the total of Qualified Accounts is herein called the "Borrowing Base". All such loans shall bear interest, and where appropriate under the Lender's prevailing policy shall bear a service charge at the rate agreed on from time to time by the parties, and at the option of Lender shall be evidenced by notes in form satisfactory to Lender, but in the absence of notes shall be conclusively evidenced by the Lender's record of disbursements and repayments. The Borrower's loans are presently evidenced by that certain Secured Note ("Secured Note") bearing even date herewith. The unpaid principal balances of the borrower's loans shall bear interest from the date hereof upon disbursed and unpaid principal balances (calculated on the terms basis of a year of 360 days) at a rate per annum which shall, from day to day, be equal to two and conditions herein set forththree quarters of one percent (2.75%) per annum for amounts outstanding under the Note, plus the rate for commercial loans announced from time to time in the United States as its prime rate ("Prime Rate") by Bank, each Lender severally agrees change in the rate to make a loan or loans (eachbe charged hereon to become effective, a “Revolving Credit Loan”) without notice to the Borrower, which Revolving Credit Loans (i) on the effective date of each change in the Prime Rate, and interest shall be payable monthly in arrears on the 1st day of each month, commencing on the 1st day of May, 1999. The Prime Rate is a reference rate and is not exceed necessarily the Revolving Credit Commitment lowest rate charged by Lender or Bank for extensions of such Lender (after giving effect thereto and to the application credit. The Bank's Prime Rate is, as of the proceeds thereof)date hereof, seven and three-quarters of one percent (ii7.75%) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at per annum. All such time exceed the Maximum Amount then in effect, (iii) loans shall be made at any time and from time to time payable on and after the Closing Date and prior to the Revolving Credit Maturity Datedemand or, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is if no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all demand then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and Termination Date as that term is defined in the proceeds thereof Secured Note."
B. All references to the "Loan Agreement" set forth in the documents executed in connection with the Loan Agreement shall be applied directly deemed to be references to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing Loan Agreement as amended by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasethis Second Amendment.
Appears in 1 contract
Sources: Inventory and Accounts Receivable Loan and Security Agreement (NDC Automation Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forthforth in this Agreement, each Lender of the Lenders severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) lend to the Borrower, which Revolving Credit Loans and the Borrower may borrow (iand repay and reborrow) shall not exceed from time to time between the Revolving Credit Commitment of Closing Date and the Maturity Date upon notice by the Borrower to the Agent given in accordance with §2.6, such Lender sums as are requested by the Borrower for the purposes set forth in §2.8 up to a maximum aggregate principal amount outstanding (after giving effect thereto and to all amounts requested) at any one time equal to the application lesser of the proceeds thereof), (i) such Lender’s Commitment and (ii) such Lender’s Commitment Percentage of the sum of (A) the Borrowing Base Advance Amount minus (B) the sum of (1) the amount of all outstanding Loans and (2) the aggregate amount of Letter of Credit Liabilities; provided, that, in all events no Default or Event of Default shall nothave occurred and be continuing; and provided, further, that the outstanding principal amount of the Loans (after giving effect thereto to all amounts requested) and to the application Letter of the proceeds thereof, Credit Liabilities shall not at any time result in exceed the Total Revolving Credit Outstandings at such time exceed Commitment or cause a violation of the Maximum Amount then covenant set forth in effect, (iii) §9.1. The Loans shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed pro rata in accordance with each Lender’s Commitment Percentage. Each request for a Loan hereunder shall constitute a representation and warranty by the provisions hereof. On Borrower that all of the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in fullconditions required of B▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ §▇▇ and §11 have been satisfied on the date of such request. The obligations Agent may assume that the conditions in §10 and §11 have been satisfied unless it receives prior written notice from a Lender that such conditions have not been satisfied. No Lender shall have any obligation to make Loans to Borrower in the maximum aggregate principal outstanding balance of each Lender hereunder shall be several and not jointmore than the principal face amount of such Lender’s Note.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline The Loans shall be repaid evidenced by separate promissory notes of Borrower in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from substantially the Borrower or the Required Lenders stating that a Default or an Event form of Default exists and is continuing until such time as the Swingline Lender shall have received written notice of Exhibit A hereto (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Daycollectively, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory BorrowingNotes”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Daydated of even date with this Agreement (except as otherwise provided in §18.3) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loanscompleted with appropriate insertions. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, One Note shall be payable to the order of each Lender purchasing same from in the principal amount equal to such Lender’s Commitment or, if less, the outstanding amount of all Loans made by such Lender, plus interest accrued thereon, as set forth below. The Borrower irrevocably authorizes Agent to make or cause to be made, at or about the time of the Drawdown Date of any Loan or the time of receipt of any payment of principal thereof, an appropriate notation on Agent’s Record reflecting the making of such Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Loans set forth on Agent’s Record shall be prima facie evidence of the principal amount thereof owing and after unpaid to each Lender, but the failure to record, or any error in so recording, any such date amount on Agent’s Record shall not limit or otherwise affect the obligations of purchasethe Borrower hereunder or under any Note to make payments of principal of or interest on any such Note when due.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Gladstone Commercial Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans to the Borrower, which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in Dollars, (iv) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(b) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in U.S. Dollars, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof), result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity DateDate (provided that no Revolving Credit Loans may be borrowed on the Closing Date other than (x) Revolving Credit Loans in an amount not to exceed $20,000,000 to be used to pay for the Debt Refinancing, the Sheridan Acquisition and the Transaction Expenses and (y) Revolving Credit loans used to pay amounts attributable to any “flex” pursuant to the Fee Letter in the form of upfront fees and/or OID), (ivv) may, may at the option of the Borrower, Borrower be incurred Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Credit Agreement (Amsurg Corp)
Loans. (a) Subject to and upon Upon the terms and conditions and relying upon the representations and warranties herein set forth, each Lender Bank severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) Loans to the BorrowerBorrower denominated in Dollars or Alternate Currencies, which Revolving Credit from time to time on any one or more Business Days during the period from the Closing Date to the Maturity Date, up to an aggregate Canadian Dollar Equivalent Value of the principal amount of Loans not exceeding at any one time outstanding the amount set opposite such Bank's name on the signature pages hereof as such Bank's Commitment (i) shall not exceed the Revolving Credit Commitment of such Lender (amount, as it may be reduced from time to time pursuant to Section 4.7 and Section 13.10 being such Bank's "Commitment"); provided, however, that after giving effect thereto and to any Loan, in no event shall the Canadian Dollar Equivalent Value of the outstanding amount of all Loans of all Banks made hereunder to the application Borrower plus the Canadian Dollar Equivalent Value of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application Letter of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time Commitments of all the Banks. Within such limits and from time to time on during such period and after the Closing Date and prior subject to the Revolving Credit Maturity Dateterms and conditions of this Agreement, (iv) maythe Borrower may borrow, at the option of the Borrower, be incurred repay and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointreborrow hereunder.
(b) [intentionally omitted]
(c) The Borrower shall execute and deliver to the Agent for each Bank to evidence the Loans made by each Bank, a promissory note (each, as the same may be amended, modified or extended from time to time, a "Note"), which shall be (i) dated the Closing Date; (ii) in the principal amount of such Bank's Commitment; and (iii) in substantially the form attached hereto as Exhibit A, with the blanks appropriately filled. The outstanding principal balance of each Note shall be payable on the Maturity Date. Each Lender may Note shall bear interest on the unpaid principal amount thereof from time to time outstanding at the rate per annum determined as specified in Section 3, payable on each Interest Payment Date and at maturity, commencing with the first Interest Payment Date following the date of such Note.
(d) In the case of a proposed borrowing comprised of Eurodollar Loans, the Agent shall promptly notify each Bank of the applicable interest rate under Section 3.
1. In the case of all borrowings, each Bank shall, before 12:00 noon (Toronto time) on the Borrowing Date, make available for the account of its Applicable Lending Office to the Agent at the Agent's Domestic Lending Office, in immediately available funds, and in the requested currency, its Pro Rata Percentage of such borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Section 8, on the Borrowing Date the Agent shall make the borrowing available to the Borrower at its option make Domestic Lending Office in immediately available funds and in the requested currency. Each Bank may, at its option, post on a schedule attached to its Note (x) the date and principal amount of each Loan made under such Note; (y) the rate of interest each such Loan will bear; and (z) each payment of principal thereon; provided, however, that any Eurodollar Loan by causing any domestic or foreign branch or Affiliate failure of such Lender Bank to so mark ▇▇▇h Note shall not affect the Borrower's obligations thereunder; and provided further that such Bank's records as to such matters shall be controlling, absent manifest error, whether or not such Bank has so marked such Note. Any deposit to the Borrower's demand deposit account by the Agent pursuant to a request (whether written or oral) believed by the Agent to be an authorized request by the Borrower for a Loan hereunder shall be deemed to be a Loan hereunder for all purposes with the same effect as if the Borrower had in fact requested the Agent to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forthhereof, each Lender severally agrees to make a loan or revolving credit loans (eacheach a "Loan" and, a “Revolving Credit Loan”as the context may require, collectively with all Loans of such Lender and with the Loans of all other Lenders, the "Loans") to the BorrowerBorrower from time to time during the Commitment Period, which Revolving Credit Loans in an aggregate principal amount such that at any one time the Facility Exposure of such Lender shall not exceed such Lender's Commitment Amount. At no time shall (i) shall not the sum of (A) the aggregate outstanding principal amount of the Loans of all Lenders, (B) the aggregate Swingline Exposure, and (C) the aggregate LC Exposure, exceed the Revolving Credit Total Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof)Amount, (ii) shall not, after giving effect thereto the face amount of all issued and to the application outstanding Letters of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effectLC Sublimit, or (iii) shall be made at any time the outstanding Swingline Loans exceed the Swingline Amount. During the Commitment Period, the Borrower may borrow, prepay in whole or in part and from time to time on and after reborrow under the Closing Date and prior to the Revolving Credit Maturity DateCommitments, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the terms and conditions of this Agreement. Subject to the provisions hereof. On the Revolving Credit Maturity Dateof Sections 2.3 and 2.8, all outstanding Revolving Credit Loans shall may be repaid in full. The obligations of each Lender hereunder shall be several and not joint(a) ABR Advances, (b) Eurodollar Advances, or (c) any combination thereof.
(b) Each Lender may at This Agreement amends and restates in its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate entirety all of such Lender to make such Loan; provided that the terms of the Prior Credit Agreement. On the Effective Date (i) any exercise of such option the Loans under the Prior Credit Agreement shall not affect be deemed to be Loans under and as defined in this Agreement and shall maintain their respective status as Eurodollar Advances, ABR Advances or Swing Line Loans, as the obligation of case may be, as under the Borrower to repay such Loan and Prior Credit Agreement, (ii) in exercising such optionRegions Bank (the "Exiting Lender") shall cease to be a Lender hereunder, such Lender and (iii) the Lenders (including Exiting Lender) shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it buy and sell interests in the event of Loans among themselves as determined by the Agent such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, that after giving effect thereto and to the application each Lender shall own its Commitment Percentage of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline and the Exiting Lender shall not make cease to own 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing interests in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseLoans.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make (or in the case of any Rollover Lender (as defined in the First Incremental Agreement) on the First Incremental Agreement Effective Date, be deemed to make) a loan or loans (each, a an “Revolving Credit Initial Term Loan”) to the Borrower, which Revolving Credit Initial Term Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Initial Term Loan Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof)Lender, (ii) shall notnot exceed, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate, the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effectInitial Term Loan Commitment, (iii) shall be made at any time and from time to time (x) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (a) of the definition of Initial Term Loan Commitments, on and after the Closing Date and prior to (y) in the Revolving Credit Maturity case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (b) of the definition of Initial Term Loan Commitments, on the First Incremental Agreement Effective Date, (iv) shall be denominated in Dollars, (ivv) may, at the option of the Borrower, be incurred Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Initial Term Loans of the same Type and (vvvi) may be repaid and reborrowed or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Revolving Credit Initial Term Loan Maturity Date, all outstanding Revolving Credit Initial Term Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Incremental Agreement (Grocery Outlet Holding Corp.)
Loans. (a) Subject to and upon the terms and conditions herein set forthprovisions of this instrument, each Lender severally agrees to make available to Borrower a term loan or loans in the original principal amount of THREE MILLION AND NO/100 (each$3,000,000.00) DOLLARS, a “Revolving Credit Loan”) solely for the purposes specifically enumerated herein and certain costs and expenses related thereto, by advancing said sum to Borrower on the date hereof pursuant to the Borrowerprovisions herein contained (the "Term Loan"). The Term Loan shall be evidenced by a certain Promissory Note in the original principal amount of $3,000,000.00, in form and content acceptable to Lender, which Revolving Credit Loans (i) shall not exceed be executed by Borrower and payable to the Revolving Credit Commitment order of such Lender (after giving effect thereto together with any and all extensions, renewals and modifications thereof, the "Term Note"). In addition, subject to the application terms and provisions of the proceeds thereof)this instrument, (ii) shall not, after giving effect thereto and Lender also agrees to the application make available to Borrower a revolving line of the proceeds thereof, at any time result credit in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effectmaximum principal amount of FIVE MILLION AND N0/100 ($5,000,000.00) DOLLARS, (iii) shall to be made at any time used for general corporate purposes, including working capital needs of Borrower and its subsidiaries, by advancing said sum to Borrower on a revolving basis from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders 's request pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely provisions herein contained (the "Line of Revolving Credit;" the Term Loan and the Line of Credit Loans are sometimes hereinafter collectively referred to as the "Loans"). The Line of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid evidenced by a certain Revolving Promissory Note in full. The obligations the maximum principal amount of each Lender hereunder $5,000,000.00, in form and content acceptable to Lender, which shall be several executed by Borrower and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the order of Lender purchasing same from (together with any and after such date of purchaseall extensions, renewals and modifications thereof, the "Revolving Note"). The Term Note and the Revolving Note are hereinafter collectively referred to as the “Notes.”
Appears in 1 contract
Sources: Loan Agreement (Alexanders J Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application As of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to Tranche A Term Facility, the same Borrowing shallTranche B Term Facility, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type Tranche C Term Facility and (v) may the Tranche D Term Facility have been fully advanced. The Tranche E Term Facility shall be repaid and reborrowed advanced in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointSection 2.1.1(b).
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate Subject to all of such Lender the terms and conditions hereof, the Lenders hereby agree to make such Loanup to one (1) Loan Advance under the Tranche E Term Facility to the Borrower between the date hereof and October 24, 2018 (the “Outside Funding Date”); provided provided, that the (i) any exercise Total Outstandings shall at no time exceed the lesser of such option shall not affect (A) the obligation Total Commitment and (B) the Borrowing Base Value; (the lesser of (A) or (B) being the Borrower to repay such “Maximum Loan Amount”) and (ii) the Total Tranche E Term Outstandings shall not exceed the Total Tranche E Term Commitments (in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation effect as of the Lender shall not require it to takeClosing Date). The Tranche A Term Facility, or refrain from takingthe Tranche B Term Facility, actions that it determines would result in increased costs for which it will the Tranche C Term Facility, the Tranche D Term Facility and the Tranche E Term Facility may not be compensated hereunder or that it determines would be otherwise disadvantageous reborrowed under any circumstances, and, subject to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 2.1.1(d) below, no Loan Advances shall apply)be made after Outside Funding Date.
(ic) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit The obligations of the provisions Lenders hereunder are several and independent and not joint. No Lender shall become obligated to advance more than its Commitment Percentage of Section 2.1(c)(ii)a Tranche E Term Facility Loan including, (C) shall not exceed at any time outstanding the Swingline Commitmentwithout limitation, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application as a result of the proceeds thereof, result at failure of any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and Lender to fulfill its obligations hereunder.
(Gd) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Provided no Default or Event of Default shall then be in existence, the Borrower shall have the right to elect to increase the Total Tranche A Term Commitment, the Total Tranche B Term Commitment, the Total Tranche C Term Commitment, the Total Tranche D Term Commitment and/or the Total Tranche E Term Commitment provided and on condition that: (i) at the time of Borrower’s election to increase the Total Tranche A Term Commitment, the Total Tranche B Term Commitment, the Total Tranche C Term Commitment, the Total Tranche D Term Commitment and/or the Total Tranche E Term Commitment, the full amount of the Tranche E Term Facility shall have been advanced pursuant to the then-existing Tranche E Term Commitment (for the avoidance of doubt, it shall not be a requirement that all amounts advanced then remain outstanding); and (ii) no increase in the (A) Tranche A Term Commitment shall occur after the Tranche A Term Facility Maturity Date, (B) Tranche B Term Commitment shall occur after the Tranche B Term Facility Maturity Date, (C) Tranche C Term Commitment shall occur after the Tranche C Term Facility Maturity Date, (D) Tranche D Term Commitment shall occur after the Tranche D Term Facility Maturity Date or (E) Tranche E Term Commitment shall occur after the Tranche E Term Facility Maturity Date; and provided further that: (x) the amount of each such increase shall not be less than Ten Million Dollars ($10,000,000) or in increments of Five Million Dollars ($5,000,000.00) in excess thereof, and (y) the aggregate amount of all such increases shall not cause the Total Commitment to exceed Six Hundred Seventy-Five Million Dollars ($675,000,000). Any such increase in the Total Commitment shall be allocated to the Tranche A Term Facility, the Tranche B Term Facility, the Tranche C Term Facility, the Tranche D Term Facility and/or the Tranche E Term Facility in such amounts as the Borrower may request. Such right may be exercised by the Borrower by written notice to the Administrative Agent, which election shall designate the requested increase in the Total Commitment and to which of the Tranche A Term Facility, Tranche B Term Facility, Tranche C Term Facility, Tranche D Term Facility and/or Tranche E Term Facility such request is being made. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Lenders), and each Lender shall endeavor to respond as promptly as possible within such time period. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment (which decision shall be in its sole discretion) and, if so, whether by an amount equal to, greater than, or less than its Commitment Percentage of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed), the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement (each a “Joinder Agreement”) in form and substance reasonably satisfactory to the Administrative Agent and its counsel. If the Total Commitment is increased in accordance with this Section, the provisions Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of Section 13.1 each Lender’s increased Commitments among the Tranche A Term Facility, the Tranche B Term Facility, the Tranche C Term Facility, the Tranche D Term Facility, and the Tranche E Term Facility and if such increase is not pro rata among the Tranche A Term Facility, the Tranche B Term Facility, the Tranche C Term Facility, the Tranche D Term Facility and the Tranche E Term Facility, the new or increased Commitments issued in connection with such increase, and the existing Tranche A Term Commitment, Tranche B Term Commitment, Tranche C Term Commitment, Tranche D Term Commitment and Tranche E Term Commitment of the Lenders shall be adjusted (but any existing Commitment of a Lender will not be increased unless such Lender has elected to increase its Commitment) so as to at all times provide that each Lender shall have a pro rata Commitment in each of the Tranche A Term Facility, the Tranche B Term Facility, the Tranche C Term Facility, the Tranche D Term Facility and the Tranche E Term Facility. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase (with such increase being pro rata among existing Lenders choosing to increase their Commitments) and the Increase Effective Date. As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date signed by an Authorized Officer of the Borrower (i) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article 6 and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.1.1(d), the representations and warranties contained in Section 6.8 shall be deemed to refer to the most recent statements furnished to the Administrative Agent pursuant to Section 7.2.1 and Section 7.2.2, and except as to the representations and warranties in Sections 6.4, 6.7, 6.9, and 6.14 which may be modified only to reflect events occurring after the date hereof as specifically disclosed in writing to Administrative Agent prior to or simultaneously with such written request and (B) no Default or Event of Default is no longer continuing.
(ii) On exists. The amount of any Business Dayapplicable increase in the Tranche A Term Facility, the Swingline Lender mayTranche B Term Facility, in its sole discretionthe Tranche C Term Facility, give notice to the Lenders, with a copy to Tranche D Term Facility and/or the Borrower, that all then-outstanding Swingline Loans Tranche E Term Facility shall be funded with a Borrowing of Revolving Credit Loans, on such Increase Effective Date. This Section shall supersede any provisions in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given Sections 12.2 or 13.4.1 to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasecontrary.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions set forth herein set forthand in the Credit Agreement, (i) each Lender severally agrees to make person designated as a loan or loans “Term Lender” on Schedule I hereto (each, a “Revolving Credit Loan2017 Term Lender”) agrees, severally and not jointly, to make a 2017 Term Loan to the Borrower, which Revolving Credit Loans Borrowers on the Amendment No. 3 Effective Date (ias defined below) shall in an aggregate principal amount not to exceed the Revolving amount set forth opposite its name on Schedule I hereto, and (ii) from and after the making of the 2017 Term Loans on the Amendment No. 3 Effective Date, (x) each 2017 Term Loan shall be a “Term Loan” and a “Loan” and, unless the context requires a reference solely to the Term Loans made prior to the Amendment No. 3 Effective Date, an “Initial Term Loan” (for the avoidance of doubt, the Maturity Date for the 2017 Term Loans shall be the same as the Maturity Date for the Initial Term Loans made prior to the Amendment No. 3 Effective Date), (y) each Person that holds 2017 Term Loans from time to time shall be a “Term Lender” and a “Lender”, and (z) the aggregate 2017 Term Loans of all Persons that hold 2017 Term Loans shall be the “Term Facility”, in each case, for all purposes under the Credit Commitment Agreement (as amended hereby) and the other Loan Documents. Without limiting the foregoing, the Borrowers hereby unconditionally promise to repay the 2017 Term Loans in accordance with the schedule of such Lender installment payments set forth in Section 2.07(a) of the Credit Agreement (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect amendments thereto effected hereby and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to as the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed further adjusted in accordance with the provisions hereofCredit Agreement). On Amounts borrowed as 2017 Term Loans and subsequently repaid may not be reborrowed. The proceeds of the Revolving Credit Maturity Date, all outstanding Revolving Credit 2017 Term Loans shall be repaid in fullused by the Borrowers solely to make the Loan Repayment (as defined below). The obligations For the avoidance of each Lender doubt, the making of the 2017 Term Loans hereunder shall be several and not jointconstitute “Specified Refinancing Debt” within the meaning of Section 2.18 of the Credit Agreement.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that On the Amendment No. 3 Effective Date, (i) any exercise of such option the Borrowers shall not affect prepay in full all Existing Term Loans outstanding under the obligation Credit Agreement, together with all accrued and unpaid interest thereon and all fees and expenses incurred in connection with the foregoing, with the proceeds of the Borrower 2017 Term Loans and, if necessary, cash on hand of the Borrowers (collectively, the “Loan Repayment”). Notwithstanding the making of the Loan Repayment, the holders of the Existing Term Loans shall thereafter continue to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs be entitled to the Borrower resulting therefrom (which obligation benefits of Sections 3.01, 3.03, 3.04, 3.05, 3.06 and 10.04 of the Lender shall not require it to take, or refrain from taking, actions that it determines would result Credit Agreement as in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and effect immediately prior to the Swingline Maturity Date, Amendment No. 3 Effective Date and shall continue to make a loan or loans (each, a “Swingline Loan”) be bound by Section 9.07 of the Credit Agreement as in effect immediately prior to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereofAmendment No. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.3
Appears in 1 contract
Sources: Credit Agreement (PPD, Inc.)
Loans. (a) Subject to and upon the terms and conditions and in reliance upon the representations and warranties herein set forth, each Lender with a Commitment agrees, severally agrees and not jointly, to make provide Loans to the Borrower on the Effective Date in a loan or loans principal amount not to exceed its Commitment. Each Lender shall provide such Loans to the Borrower on the Effective Date pursuant to (eachx) the automatic substitution and exchange, on a cashless basis, of the Pre-Existing Borrowings for Loans, in a principal amount equal to such Pre-Existing Borrowings, which shall be deemed Loans issued hereunder on the Effective Date and (y) the funding in cash of Loans (the “Revolving Credit LoanEffective Date Advance”) hereunder on the Effective Date in an aggregate principal amount equal to each Lender’s Funded Cash Amount. The Original Issue Discount shall be deducted from the Effective Date Advance and credited to the Borrower[****] Lenders on a pro rata basis. All Commitments, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto Pre-Existing Borrowings and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations Funded Cash Amounts of each Lender hereunder shall be several and not jointare set forth on Schedule 2.1 under the correlative heading.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic As of the Effective Date, the aggregate Outstanding Amount (including, for the avoidance of doubt, all Funded Cash Amounts) owing to the Lenders under, or foreign branch or Affiliate in respect of, the Loans and in respect of such Lender to make such Loan; provided that all Obligations, is $200,364,584.19, allocated between the Lenders as set forth in Schedule 2.1.
(c) The outstanding principal balance of and all accrued and unpaid interest on the Loans shall be due and payable on the earlier of (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and Maturity Date, (ii) in exercising such optiona Change of Control, such Lender shall use its reasonable efforts to minimize any increased costs to (iii) upon the Borrower resulting therefrom (which obligation sale or transfer of all or substantially all assets of the Lender shall not require it to take, Collateral Properties and (iv) the date of the acceleration of the Loans in accordance with the terms hereof. Any principal amount of the Loans that is repaid or refrain from taking, actions that it determines would result in increased costs for which it will prepaid may not be compensated hereunder or that it determines would be otherwise disadvantageous to it reborrowed. All principal of, interest on, and other amounts payable in respect of the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 Loans shall apply)constitute Obligations.
(id) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agreesAny contrary provision of this Agreement or any other Loan Document notwithstanding, at any time and from time to time on and after the Closing Date occurrence and prior to during the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit continuance of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 Default, [****] may, from time to time, make Loans to, or for the benefit of, Borrower, as it deems necessary or desirable (i) to preserve or protect the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party Collateral, or parties originally delivering such notice any portion thereof, or (yii) to enhance the waiver likelihood of such Default or Event repayment of Default the Obligations (the Loans described in accordance with the provisions of this Section 13.1 or that such Default or Event of Default is no longer continuing2.1(d) shall be referred to as “Protective Advances”).
(iie) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans Each Protective Advance shall be funded with deemed to be a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) Loan hereunder. The Protective Advances shall be made repayable on the same Business Day (provided that such notice is given to the Lenders demand, secured by the Swingline Lender before 1:00 p.m. (New York Time)Agent’s Liens, or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentageconstitute Obligations hereunder, and bear interest at the proceeds thereof shall be applied directly rate applicable from time to the Swingline Lender time to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (iThe provisions of this Section 2.1(d) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account exclusive benefit of the Swingline Lender until the date the respective participation is purchased and, Agent and Lenders and are not intended to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasebenefit Borrower (or any other Loan Party) in any way.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower (or Co-Obligors), which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in Dollars, (iv) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans, Term SOFR Loans or Eurocurrency Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(i) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower (or Co-Obligors) in Dollars or any Alternative Currency, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof), result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (ivv)(i) mayin the case of Revolving Credit Loans denominated in Dollars, may at the option of the Borrower, applicable Borrower be incurred Incurred and maintained as, and/or converted into, ABR Loans, Term SOFR Loans or Eurodollar Eurocurrency Loans and (ii) in the case of Revolving Credit Loans denominated in an Alternative Currency, shall be Incurred and maintained as Eurocurrency Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. .
(i) On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Fixed Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Fixed Rate Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Fixed Rate Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the BorrowerBorrower in Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(d)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, and (GE) may be repaid and reborrowed in accordance with the provisions hereofhereof and (F) shall mature no later than the date ten Business Days after such Swingline Loan is made. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from either the Borrower or the Required Lenders Administrative Agent 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 of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one same Business Day’s Days’ notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code any Debtor Relief Law in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing the same from and after such date of purchase.
(iii) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more applicable Revolving Credit Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit Lender in its capacity as a lender of Swingline Loans hereunder.
(iv) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) the Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract
Sources: Amendment Agreement No. 2, Consent and Waiver (MultiPlan Corp)
Loans. (a) Subject to and upon the terms and conditions set forth herein set forth, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this AgreementAncillary Agreements, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice make revolving credit advances (the "Revolving Credit Advances") to Borrowers from time to time during the term of this Agreement which, in the aggregate at any time outstanding, will not exceed the lesser of (x) the Maximum Revolving Amount less the aggregate amount of outstanding Letters of Credit or (y) an amount equal to the Lenderssum of:
(i) Receivables Availability, with a copy PLUS
(ii) 40% of the amount of Eligible Inventory consisting of raw materials; PLUS
(iii) (a) from the Closing Date through and including February 28, 1994, 45% of the amount of Eligible Inventory consisting of finished goods and (b) from March 1, 1994 until the expiration of the Term, 40% of the amount of Eligible Inventory consisting of finished goods; PLUS
(iv) (a) from the Closing Date through and including February 28, 1994, 45% of the amount of Eligible Inventory in transit under Letters of Credit and (b) from March 1, 1994 until the expiration of the Term, 40% of the amount of Eligible Inventory in transit under Letters of Credit; MINUS
(v) the aggregate amount of outstanding Letters of Credit; MINUS
(vi) such reserves as Lender may reasonably deem proper and necessary from time to the Borrowertime. The sum of 2(a)(i), that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loansplus (ii), in which case Revolving Credit Loans constituting ABR Loans plus (each such Borrowingiii), a “Mandatory Borrowing”plus (iv) shall be made on referred to as the same Business Day "Formula Amount".
(provided b) Notwithstanding the limitations set forth above, Lender retains the right to lend Borrowers from time to time such amounts in excess of such limitations as Lender may determine in its sole discretion.
(c) Each Borrower acknowledges that the exercise of Lender's discretionary rights hereunder may result during the term of this Agreement in one or more increases or decreases in the Advance Rates and each Borrower hereby consents to any such notice increases or decreases which may limit or restrict advances requested by Borrowers.
(d) If Borrowers do not pay any interest, fees, costs or charges to Lender when due, Borrowers shall thereby be deemed to have requested, and Lender is given hereby authorized, at its discretion, to make and charge to Borrowers' account a Revolving Credit Advance to Borrowers as of such date in an amount equal to such unpaid interest, fees, costs or charges.
(e) Any sums expended by Lender due to any Borrower's failure to perform or comply with its obligations under this Agreement, including but not limited to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time)payment of taxes, insurance premiums or otherwiseleasehold obligations, on the next Business Day) by all Lenders pro rata based on each such Lender’s shall be charged to Borrowers' account as a Revolving Credit Commitment PercentageAdvance and added to the Obligations.
(f) Lender will account to Borrowers monthly with a statement of all Loans and other advances, charges and payments made pursuant to this Agreement, and the proceeds thereof such account rendered by Lender shall be applied directly deemed final, binding and conclusive unless Lender is notified by any Borrower in writing to the Swingline Lender contrary within thirty (30) days of the date each account was rendered specifying the item or items to repay which objection is made.
(g) During the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Term, Borrowers may borrow, prepay and reborrow Revolving Credit Loans upon one Business Day’s notice pursuant Advances, all in accordance with the terms and conditions hereof.
(h) Subject to each Mandatory Borrowing in the terms and conditions hereof, Lender shall (a) issue or cause the issuance of Letters of Credit ("Letters of Credit"); PROVIDED, HOWEVER, that Lender will not be required to issue or cause to be issued any Letters of Credit to the extent that the face amount and in of such Letters of Credit would then cause the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding sum of (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, outstanding Revolving Credit Advances PLUS (ii) whether outstanding Letters of Credit (with the requested Letter of Credit being deemed to be outstanding for purposes of this calculation) to exceed the lesser of (x) the Maximum Revolving Advance Amount or (y) the Formula Amount (which is calculated as if the requested Letter of Credit has been issued). The maximum amount of outstanding Letters of Credit shall not exceed $1,000,000 in the aggregate at any time. All disbursements or payments related to Letters of Credit shall be deemed to be Revolving Credit Advances and shall bear interest at the applicable Contract Rate; Letters of Credit that have not been drawn upon shall not bear interest. Letters of Credit shall be subject to the terms and conditions specified set forth in Section 7 are then satisfiedthe Letter of Credit and Security Agreement attached hereto as EXHIBIT 2(H).
(i) Borrowers may request Lender to issue or cause the issuance of a Letter of Credit by delivering to Lender at the Payment Office, Lender's standard form of Letter of Credit and Security Agreement together with Bank's standard form of Letter of Credit Application (collectively, the "Letter of Credit Application") completed to the satisfaction of Lender and, such other certificates, documents and other papers and information as Lender may reasonably request.
(j) Each Letter of Credit shall, among other things, (iiii) whether a Default or provide for the payment of sight drafts when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii) have an Event expiry date not later than six months after such Letter of Default has occurred and is continuing, (iv) the Credit's date of such Mandatory Borrowing or (v) any reduction issuance and in no event later than the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment last day of the Swingline Lender, any Mandatory Borrowing cannot Term. Each Letter of Credit Application and each Letter of Credit shall be subject to the Uniform Customs and Practice for any reason be made on the date otherwise required above Documentary Credits (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower1983 Revision), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse International Chamber of Commerce Publication No. 400, and any amendments or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased revision thereof and, to the extent attributable not inconsistent therewith, the laws of the State of New York.
(k) In connection with the issuance of any Letter of Credit, Borrowers shall indemnify, save and hold Lender harmless from any loss, cost, expense or liability, including, without limitation, payments made by Lender, and expenses and reasonable attorneys' fees incurred by Lender arising out of, or in connection with, any Letter of Credit to be issued or created for Borrowers. Each Borrower shall be bound by Lender's or any issuing or accepting Bank's regulations and good faith interpretations of any Letter of Credit issued or created for Borrowers' account, although this interpretation may be different from Borrowers' own, and, neither Lender, the Bank which opened the Letter of Credit, nor any of its correspondents shall be liable for any error, negligence, or mistakes, whether of omission or commission, in following Borrowing Agent's instructions or those contained in any Letter of Credit or of any modifications, amendments or supplements thereto or in issuing or paying any Letter of Credit, except for Lender's or such correspondents' willful misconduct.
(l) Borrowers shall authorize and direct any Bank which issues a Letter of Credit to name the applicable Borrower as the "Account Party" therein and to deliver to Lender all instruments, documents, and other writings and property received by the Bank pursuant to the purchased participationLetter of Credit and to accept and rely upon Lender's instructions and agreements with respect to all matters arising in connection with the Letter of Credit or the application therefor.
(m) In connection with all Letters of Credit issued or caused to be issued by Lender under this Agreement, shall be payable each Borrower hereby appoints Lender, or its designee, as its attorney, with full power and authority upon the occurrence and during the continuation of an Event of Default (i) to the Lender purchasing same from sign and/or endorse any Borrower's name upon any warehouse or other receipts, letter of credit applications and after such date of purchase.acceptances; (
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions set forth herein set forthand in reliance upon the representations and warranties in the Loan Documents, NLC Holding and Lender NLC each Lender severally agrees to make a loan or loans Loan (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall Borrower on the Closing Date in a principal amount not to exceed the Revolving Credit Commitment of such Lender; provided that Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) NLC shall be made at any time and from time required to time fund an amount equal to its Commitment minus the Estimated Closing Adjusted Tangible Net Book Value, but shall be deemed to have funded the entire full amount of its Commitment on and after the Closing Date for purposes of calculating the principal outstanding, interest payable thereon and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance other amounts due with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointrespect thereto.
(b) Each If the Borrower would have a net tangible book value for state licensing purposes of less than $250,000, Lender may NLC’s Loan shall be deemed automatically converted into equity in an amount and to the extent required for the Borrower to have a net tangible book value for regulatory purposes of at least $250,000.
(c) If Lender NLC’s Loan has been converted into equity in its option make any Eurodollar entirety, NLC Holding’s Loan by causing any domestic or foreign branch or Affiliate shall be deemed automatically converted into equity in an amount and to the extent required for the Borrower to have a net tangible book value for regulatory purposes of such Lender to make such Loanat least $250,000; provided provided, however, that (i) any exercise of in such option event, the parties shall not affect the obligation of the Borrower enter into a revised LLC Agreement in a form reasonably acceptable to repay such Loan NLC Holding to reflect NLC Holding’s contributions; and (ii) NLC Holding’s Loan shall not be converted if the conversion would cause NLC Holding to own more than 10% of the aggregate outstanding equity of the Borrower on a fully-diluted basis, absent regulatory notice or approval in exercising such optionthose states where the Borrower is licensed and where a change of ownership requires regulatory notice or approval.
(d) Notwithstanding the automatic conversion of any Loans to equity in accordance with this Section 2.1, such Lender the aggregate amount of principal balance of the Loans (including any amounts added to principal or converted to equity under this Section 2.1) shall use its reasonable efforts continue to minimize any increased costs accrue interest at the rate of 15% per annum, compounded monthly on the first day of each month.
(e) In the event that the Second Closing does not occur on or prior to the Borrower resulting therefrom (which obligation Maturity Date or termination of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, Lender NLC agrees that any recovery by the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice Lenders 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code assets in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline shared 80% by NLC Holding and 20% by Lender until the date the respective participation is purchased andNLC, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasenotwithstanding whether any Loans have been converted into equity.
Appears in 1 contract
Sources: Loan and Security Agreement (Friedman Billings Ramsey Group Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forthhereof, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) Loans to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and Company from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, in an aggregate principal amount at any one time outstanding (ivincluding its liability for the Letter of Credit Exposure Amount at such time) may, at up to but not exceeding such Lender's Commitment on such date. Loans repaid prior to the option of the Borrower, Maturity Date may be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders reborrowed pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely terms of Revolving this Agreement. Each Loan which is not made to repay a Letter of Credit Loans Advance pursuant to Section 2.4 hereof shall be in an amount of at least (i) $5,000,000 or (ii) the Unused Commitment of the same Type and (v) may be repaid and reborrowed in accordance with Lenders, whichever is less. Each repayment of the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations an amount of each Lender hereunder shall be several and not jointat least $5,000,000 or, if less, the Current Sum.
(b) Each Lender The Company shall give the Agent notice of a request for a Loan in accordance with Section 3.1 hereof. Upon receipt of each such notice, the Agent shall promptly give each of the Lenders notice of receipt thereof, which notice may at its option make any Eurodollar Loan be by causing any domestic telephone or foreign branch or Affiliate facsimile. Not later than 1:30 P.M. (New York Time) on the date specified for the making of such Loan, each Lender shall make available to the Agent, at the Agent's Account, such Lender's Commitment Percentage of such Loan in immediately available funds for the account of the Company. The amount so received by the Agent shall, subject to the terms and conditions of this Agreement, be made available to the Company by depositing same, in immediately available funds, in an account designated by the Company maintained with the Agent or with another financial institution reasonably acceptable to the Agent. If a requested Loan shall not occur on any date specified by the Company as set forth in the applicable Request for Extension of Credit and Certificate of No Default because all of the conditions for such Loan set forth herein or in any of the other Loan Documents shall have not been met, the Agent shall return the amounts so received from the Lenders in respect of such requested Loan to the applicable Lenders as soon as practicable; provided, however, if and to the extent that the Agent fails to return any such amounts to any applicable Lender by the Business Day following the date that the requested Loan was to have been made, the Agent shall pay interest on such unreturned amounts for each date from such date that the requested Loan was to have been made, to the date that such unreturned amounts are returned to such Lender, such interest to accrue at the Federal Funds Rate and to be payable upon written request from such Lender.
(c) Unless the Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Agent such Loan; provided Lender's ratable portions of such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such Borrowing in accordance with subsection (b) of this Section 2.1 and the Agent may, in reliance upon such assumption, make available to the Company on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and the Company severally agree to repay or pay to the Agent forthwith on demand such corresponding amount and to pay interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid or paid to the Agent, at (i) any exercise of such option shall not affect in the obligation case of the Borrower Company, the interest rate applicable at such time under Section 2.9 to repay Loans comprising such Loan Borrowing and (ii) in exercising the case of such optionLender, the Federal Funds Rate. If such Lender shall use its reasonable efforts to minimize any increased costs pay to the Borrower resulting therefrom Agent such corresponding amount, such amount so paid shall constitute such Lender's Loan as part of such Borrowing for all purposes.
(which obligation d) The obligations of the Lenders hereunder are several and not joint; therefore, notwithstanding anything herein to the contrary, (i) no Lender shall be required to make Loans at any one time outstanding in excess of such Lender's Commitment, (ii) if a Lender fails to make a Loan as and when required hereunder and the Company subsequently makes a repayment on the Loans, such repayment shall be split among the non-defaulting Lenders in accordance with their respective Current Sum Percentages until each Lender has its Commitment Percentage of all of the outstanding Loans, then the balance of such repayment shall be divided among all of the Lenders in accordance with their respective Commitment Percentages (it being understood that any such repayment to a defaulting Lender shall not require it be deemed to takerelieve such defaulting Lender from any liability to the Company resulting from such defaulting Lender's failure to make a Loan as and when required hereunder) and (iii) the failure of any Lender to make any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (provided, that no Lender shall be responsible for the failure of any other Lender to make a Loan such other Lender is obligated to make hereunder).
(e) Notwithstanding anything to the contrary contained in this Section 2.1 or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event any other provision of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 Company covenants and agrees that in no event shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit aggregate amount of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such Letter of Credit Exposure Amount outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that any day ever exceed the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified Aggregate Commitment then in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date effect as of such Mandatory Borrowing or (v) any reduction in day less the Total Commitment after any aggregate amount of Uncommitted Money Market Borrowings then outstanding as of such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseday.
Appears in 1 contract
Sources: Revolving Credit Agreement (Whole Foods Market Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forthprovisions of this instrument, each Lender severally agrees to make available to Borrower a term loan or loans in the original principal amount of FIFTEEN MILLION AND NO/100 (each$15,000,000.00) DOLLARS, a solely for the purposes specifically enumerated herein and certain costs and expenses related thereto, by advancing said sum to Borrower on the date hereof pursuant to the provisions herein contained (the “Revolving Credit Term Loan”) ). The Term Loan shall be evidenced by a certain Promissory Note in the original principal amount of $15,000,000.00, in form and content acceptable to Lender, which shall be executed by Borrower and payable to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment order of such Lender (after giving effect thereto together with any and all extensions, renewals and modifications thereof, the “Term Note”). In addition, subject to the application terms and provisions of the proceeds thereof)this instrument, (ii) shall not, after giving effect thereto and Lender also agrees to the application make available to Borrower a revolving line of the proceeds thereof, at any time result credit in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effectmaximum principal amount of ONE MILLION AND N0/100 ($1,000,000.00) DOLLARS, (iii) shall to be made at any time used for general corporate purposes, including working capital needs of Borrower and its subsidiaries, by advancing said sum to Borrower on a revolving basis from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders ’s request pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely provisions herein contained (the “Line of Revolving Credit”). The Term Loan and the Line of Credit Loans are sometimes hereinafter collectively referred to as the “Loans”). The Line of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid evidenced by a certain Revolving Promissory Note in full. The obligations the maximum principal amount of each Lender hereunder $1,000,000.00, in form and content acceptable to Lender, which shall be several executed by Borrower and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the order of Lender purchasing same from (together with any and after such date of purchaseall extensions, renewals and modifications thereof, the “Revolving Note”). The Term Note and the Revolving Note are hereinafter collectively sometimes referred to as the “Notes.”
Appears in 1 contract
Loans. Following the Effective Date, the Managing Member shall use diligent efforts to apply for and secure for the Company or, if applicable, a Property Company, one or more Loans at commercially reasonable rates and on commercially reasonable non-recourse terms (with, if required by a Lender, customary carve outs, which shall be recourse only to Operating Member, SRT and/or their Affiliates who are not natural persons) for traditional senior financing, which Loan(s) shall be secured by the Initial Company Property. The Members agree to make such reasonable changes to this Agreement as may be requested by any current or future Lender; provided, however, that such changes shall not alter the economic terms, or any fundamental rights of the Members, set forth herein. Operating Member and its Affiliates who are not natural persons shall provide all recourse for customary carve outs requested in non-recourse Loans to the extent required by the Lender (the “Recourse Obligations”); provided that, (a) Subject GAP and SRT shall each reimburse Operating Member and its affiliated guarantors for GAP’s and SRT’s pro rata shares (based on Percentage Interest, provided that, if distributions have been made pursuant to and upon Section 6.03(c), 6.03(d), 6.03(e) or 6.03(f) at the terms and conditions herein set forthtime any recourse liability arises under a guaranty, each Lender severally agrees to make a loan or loans (eachthe Members’ liability for such recourse obligations, a “Revolving Credit Loan”) to the Borrowerextent such guaranty obligations are paid, which Revolving Credit Loans payable or demand has been made upon such guarantor, shall be pro rata in accordance with each Member’s then most recent distribution percentage under Section 6.03(c), 6.03(d), 6.03(e) or 6.03(f) respectively (i) shall not exceed but only to the Revolving Credit Commitment extent of such Lender distributions), and (after giving effect thereto and b) each Member shall be solely responsible for recourse liability under any guaranty to the application extent arising out of an act performed or omitted to be performed by such Member or an Affiliate of such Member. Notwithstanding the proceeds thereof)foregoing, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity DateOperating Member, or any Operating Member affiliated guarantor, making any payment under a guaranty with respect to which Operating Member intends to request reimbursement (ivin whole or in part) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed from GAP in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effectforegoing, and (G) may be repaid and reborrowed as a condition to GAP’s obligation to reimburse Operating Member or its affiliated guarantor in accordance with the provisions hereof. On foregoing, Operating Member shall notify GAP of the Swingline Maturity Dateclaim giving rise to liability under the applicable guaranty and shall refrain from making any payment under such guaranty until GAP has approved of such payment; provided, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender however, that GAP’s approval 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 be required if GAP is continuing until such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice required to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender reimburse Operating Member for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding guaranty payment under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseReimbursement Agreement.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Strategic Realty Trust, Inc.)
Loans. (a) Subject to and upon the terms and conditions herein set forthhereof and provided that there exists no Default or Event of Default, each Lender severally agrees to make a loan one (1) or more loans (eacheach a "Loan" and collectively, a “Revolving Credit Loan”the "Loans") to the Borrower, which Revolving Credit Loans (i) shall not exceed upon the Revolving Credit Commitment Borrower's request therefor made in accordance with the provisions of such Lender (after giving effect thereto and to the application of the proceeds thereof)Section 2.2 hereof, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on any Business Day during the period from the date hereof and after up to, but not including, the Closing Termination Date in an aggregate principal amount not to exceed at any one time outstanding, an amount equal to (a) the lesser of (i) the Commitment and prior to (ii) the Revolving Credit Maturity Date, (iv) may, at the option Borrowing Availability of the Borrower, less (b) the aggregate Letter of Credit Obligations outstanding; provided, however, that in the case of any Loan the proceeds of which are to be incurred and maintained asused for the purpose of making an Acquisition, and/or converted intothe principal amount of such Loan shall not, ABR Loans or Eurodollar Loans; provided unless the Majority Lenders otherwise agree, exceed the Borrowing Availability of the business that all Revolving Credit is the subject of the Acquisition. The Loans made by each Lender shall be evidenced by a promissory note, substantially in the form of the Lenders pursuant Exhibit F attached hereto, payable to the same Borrowing shallLender in the original principal face amount of such Lender's Commitment (together with any and all amendments, unless otherwise specifically provided hereinmodifications and supplements thereto, consist entirely of Revolving Credit and any renewals, replacements or extensions thereof, in whole or in part, individually, a "Note" and collectively, the "Notes"). Prior to the Termination Date, Loans of the same Type and (v) may be borrowed, repaid and reborrowed in accordance with the provisions terms hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit All Loans shall be repaid payable in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made full on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseTermination Date.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forthforth in this Agreement, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant severally agrees to lend to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans Borrower on the Closing Date such Lender’s Commitment Percentage of the same Type Total Commitment, and (v) may be repaid and reborrowed in accordance with the provisions hereofBorrower irrevocably agrees to borrow from the Lenders the amount of the Total Commitment. On the Revolving Credit Maturity Date, all outstanding Revolving Credit The Loans shall be repaid fully disbursed on the Closing Date. Notwithstanding anything to the contrary contained herein, the obligation of the Lenders to make the Loans is subject to the satisfaction of the conditions set forth in full§10. The obligations funding of each Lender the Loans hereunder shall be several constitute a representation and not jointwarranty by the Borrower that of the conditions required of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ §▇▇ have been satisfied on the Closing Date.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline The Loans shall be repaid evidenced by separate promissory notes of Borrower in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from substantially the Borrower or the Required Lenders stating that a Default or an Event form of Default exists and is continuing until such time as the Swingline Lender shall have received written notice of Exhibit A hereto (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Daycollectively, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory BorrowingNotes”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Daydated of even date with this Agreement (except as otherwise provided in §17.3) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loanscompleted with appropriate insertions. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, One Note shall be payable to the order of each Lender purchasing same from in the principal amount equal to such Lender’s Commitment, plus interest accrued thereon, as set forth below. The Borrower irrevocably authorizes Agent to make or cause to be made, on or about the date hereof or the time of receipt of any payment of principal thereof, an appropriate notation on Agent’s Record reflecting the making of such Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Loans set forth on Agent’s Record shall be prima facie evidence of the principal amount thereof owing and after unpaid to each Lender, but the failure to record, or any error in so recording, any such date amount on Agent’s Record shall not limit or otherwise affect the obligations of purchasethe Borrower hereunder or under any Note to make payments of principal of or interest on any such Note when due.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Cogdell Spencer Inc.)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees absolutely and unconditionally agrees, upon receipt of notice as provided above, to make such Revolving Credit Loans upon one Business Day’s notice pursuant pay to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2Administrative Agent, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender until acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the date occurrence and continuance of a Default or reduction or termination of the respective participation is purchased andCommitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the extent attributable payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the purchased participationSwingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be payable made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender purchasing same from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and after to the Swingline Lender, as their interests may appear, provided that any such date payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of purchaseparticipations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein hereof including the conditions set forthforth in Schedules 2.1(b)(i), 2.1(b)(ii) and 2.1(b)(iii) as applicable, the Swingline Lender Company shall issue, and the Purchasers shall purchase from the Company Notes in its individual capacity agrees, at any time and from time an aggregate original principal amount not to time on and after exceed $2,000,000.04 (the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline LoanAggregate Committed Note Amount”) in accordance with following schedule (such Notes being referred to as the Borrower, which Swingline Loans “Committed Notes”): (A) at the Initial Loan Closing which shall be ABR Loansoccur on November 16, 2010, Committed Notes having an aggregate original principal amount of $333,333.34, and (B) shall have on the benefit date that is ten (10) days following delivery by the Company to the Purchasers of a Notice (as defined below), or, with respect to each such date, on one or more other dates as may be agreed between the Company and the Majority Purchasers. In addition, after a Purchaser has issued its Pro Rata Portion of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Aggregate Committed Note Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions prior sentence, subject to the terms and conditions hereof, the Company may request that a Purchaser purchase additional Notes from the Company under this Agreement (such Notes being referred to as the “Discretionary Notes”) in an aggregate original principal amount not to exceed such Purchaser’s Pro Rata Portion of $1,999,999.96 (the “Aggregate Discretionary Note Amount” and together with the Aggregate Committed Note Amount, the “Aggregate Note Amount”), and each Purchaser shall have the right (in its full and absolute discretion), but not the obligation, to purchase its Pro Rata Portion of the Discretionary Notes which the Company requests to be issued at such applicable Additional Closing. On To the Swingline Maturity Dateextent that a Purchaser has determined (with respect to any Discretionary Notes) or is committed (with respect to any Committed Notes), in response to any request by the Company, to purchase Notes at a Loan Closing, and subject to the terms and conditions hereof, including, without limitation, the conditions set forth in Schedules 2.1(b)(i), 2.1(b)(ii) and 2.1(b)(iii), as applicable, the Company will issue and sell to the applicable Purchasers, and such Purchasers will purchase from the Company, Notes in an aggregate original principal amount not to exceed the Aggregate Discretionary Note Amount or the Aggregate Committed Note Amount, as applicable (such purchases of Notes being referred to as the “Loans”). The Aggregate Note Amount for all outstanding Swingline Purchasers for all Loans shall be repaid not exceed $4,000,000 in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower aggregate, or each Purchaser’s Pro Rata Portion of the Aggregate Committed Note Amount or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time Aggregate Discretionary Note Amount, as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuingapplicable.
(ii) On any Business Day, The purchase price for the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans Notes shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders paid by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) Purchasers by all Lenders pro rata based on each such Lenderwire transfer of immediately available funds. Each Purchaser’s Revolving Credit Commitment Percentageobligations hereunder are several and not joint, and accordingly the proceeds thereof shall be applied directly failure of any Purchaser to purchase Notes hereunder will not increase the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount obligations of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseother Purchaser.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forthhereof, each Lender severally agrees to make a loan or loans to Borrower (each, a herein called such Lender’s “Revolving Credit LoanLoans”) to the upon Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and ’s request from time to time on and after during the Closing Date and prior to the Revolving Credit Maturity DateCommitment Period, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant (a) subject to the same Borrowing shallSections 3.3, unless otherwise specifically provided herein3.4 and 3.6, consist entirely of Revolving Credit Loans of the same Type and (v) may shall be repaid and reborrowed made by Lenders in accordance with their respective Percentage Shares and as part of the provisions hereof. On the Revolving Credit Maturity Datesame Borrowing, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of after giving effect to such Lender to make such Loan; provided that Loans, (i) any exercise of such option shall the Facility Usage does not affect exceed the obligation of the Borrower to repay such Loan Aggregate Commitment, and (ii) the Facility Usage does not exceed the lesser of the Borrowing Base or the Aggregate Commitment then in exercising effect. The obligation of Borrower to repay to each Lender the aggregate amount of all Loans made by such optionLender, together with interest accruing in connection therewith, shall be evidenced by a single promissory note (herein called such Lender’s “Note”) made by Borrower payable to the order of such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event form of Exhibit A with appropriate insertions. The amount of principal owing on any Lender’s Note at any given time shall be the aggregate amount of all Loans theretofore made by such request for costs for which compensation is Lender minus all payments of principal theretofore received by such Lender on such Note. Interest on each Note shall accrue and be due and payable as provided under this Agreementherein. Each Note shall be due and payable as provided herein, and shall be due and payable in full on the provisions of Section 2.10 shall apply).
(i) Maturity Date. Subject to and upon the terms and conditions herein set forthhereof, the Swingline Lender in its individual capacity agreesBorrower may borrow, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effectrepay, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline reborrow Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuinghereunder.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Loans. (a) Subject On the Fourth Amendment Effective Date: the aggregate outstanding principal amount of Term B-7 Loans held by a Term B-7 Lender that committed to and upon convert its Term B-7 Loans into Term B-10 Loans pursuant to such Term B-7 Lender’s executed counterpart of the terms and conditions herein set forth, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) Fourth Amendment delivered to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed Left Lead New Term Facilities Arranger in accordance with the provisions hereof. On terms thereof (each such Lender, a “Converting Term B-7/B-10 Lender” and, collectively, the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b“Converting Term B-7/B-10 Lenders”) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate equal to the Term B-7/B-10 Conversion Amount of such Term B-7 Lender to make (which shalldid not exceed the aggregate outstanding principal amount of all Term B-7 Loans held by such Loan; provided that (i) any exercise Term B-7 Lender less the Term B-9 Conversion Amount of such option Term B-7 Lender) shall not affect the obligation bewas automatically converted into Term B-10 Loans of the Borrower and the applicable Subsidiary Borrowers in a like principal amount, which Term B-10 Loans shall beare denominated in Dollars; the aggregate outstanding principal amount of Term B-8 Loans held by a Term B-8 Lender that committed to repay convert its Term B-8 Loans into Term B-10 Loans pursuant to such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs Term B-8 Lender’s executed counterpart of the Fourth Amendment delivered to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed Left Lead New Term Facilities Arranger in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans terms thereof (each such BorrowingLender, a “Mandatory BorrowingConverting Term B-8/B-10 Lender” and, collectively, the “Converting Term B-8/B-10 Lenders”) equal to the Term B-8/B-10 Conversion Amount of such Term B-8 Lender (which shalldid not exceed the aggregate outstanding principal amount of all Term B-8 Loans held by such Term B-8 Lender) shall be bewas automatically converted into Term B-10 Loans of the Borrower and the applicable Subsidiary Borrowers in a like principal amount, which Term B-10 Loans shall beare denominated in Dollars; the Designated Lender agrees to makemade to the Borrower and the applicable Subsidiary Borrowers Term B-10 Loans (a Term B-10 Loan made by the Designated Lender pursuant to the Additional Term B-10 Commitment, an “Additional Term B-10 Loan” and, collectively, the “Additional Term B-10 Loans”) denominated in Dollars in an aggregate principal amount not to exceedof the Additional Term B-10 Commitment of the Designated Lender on the same Business Day Fourth Amendment Effective Date (provided that such notice is given as in effect immediately prior to giving effect to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, funding and termination thereof on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice date pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower2.06(b), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase).
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Loans. (a) Subject Until the Termination Date, subject to and upon the terms and conditions herein set forthof this Agreement, each Lender of the Lenders, severally and not jointly with the other Lenders, agrees to make a loan or loans (eachcollectively, a the “Revolving Credit LoanLoans”) in U.S. dollars to the Borrower, which Revolving Credit Borrower in an aggregate principal amount at any one time outstanding not to exceed such Lender’s Commitment. Loans shall be made on any Borrowing Date only (i) shall in the minimum aggregate principal amount of $5,000,000 or in integral multiples of $1,000,000 in excess thereof, in the case of SOFR Loans, and in the minimum aggregate amount of $1,000,000 or in integral multiples of $100,000, in the case of ABR Loans and (ii) in a maximum aggregate principal amount not exceed exceeding the Revolving Credit Available Commitment of such Lender (after giving effect thereto to any repayments or prepayments and to the application any other borrowings of the proceeds thereofLoans on such Borrowing Date), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate The Borrower acknowledges and confirms that on the Restatement Effective Date, the aggregate outstanding principal amount of such Lender to make such Loan; provided the Loans is $247,000,000.00. On the Restatement Effective Date, the parties hereto hereby agree that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) Commitments shall be ABR Loans, (B) as set forth on Schedule I and the portion of Loans outstanding shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed reallocated in accordance with such Commitments set forth on Schedule I and the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans requisite assignments shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice deemed to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the Restatement Effective Date in such amounts by and between the Lenders and from each Lender to each other Lender, with the same Business Day (provided that force and effect as if such notice is given assignments were evidenced by an applicable Assignment and Acceptance. Notwithstanding anything to the Lenders by the Swingline Lender before 1:00 p.m. contrary in Section 10.03 or any other provision hereof, no other documents or instruments, including any Assignment and Acceptance, shall be executed in connection with these assignments (New York Timeall of which requirements are hereby waived), and such assignments shall be deemed to be made with all applicable representations, warranties and covenants as if evidenced by an Assignment and Acceptance. On the Restatement Effective Date, the Lenders shall make full cash settlement with each other either directly or otherwisethrough the Administrative Agent, as the Administrative Agent may direct or approve, with respect to all assignments, reallocations and other changes in Commitments such that after giving effect to such settlements, each Lender’s Pro Rata Share shall be as set forth on Schedule I. In addition, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment PercentageRestatement Effective Date, and the proceeds thereof Borrower shall be applied directly pay to the Swingline Lender to repay Administrative Agent, for the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount account of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2Lenders, (ii) whether any conditions specified in Section 7 are then satisfiedall losses, (iii) whether a Default or an Event of Default has occurred costs and is continuingexpenses, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event thatif any, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including incurred as a result of the commencement of a proceeding under the Bankruptcy Code reallocations provided for in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasethis Section.
Appears in 1 contract
Sources: Revolving Credit Agreement (Southwest Gas Holdings, Inc.)
Loans. (a) Prior to the date hereof, each Tranche A Lender has made available to the Borrower (or subsequent to the making thereof, has acquired) a Tranche A Loan pursuant to the Original Credit Agreement, in the original aggregate principal amount set forth opposite to such Lender’s name in Schedule 1.1-I. The outstanding principal amount of the Tranche A Loans on the Restatement Effective Date shall remain outstanding and be payable pursuant to the terms hereof. On and as of the Restatement Effective Date, upon satisfaction of each of the conditions specified in Section 5.1, the Original Credit Agreement is hereby amended and modified as provided in this Agreement, with each and all the provisions thereof being replaced and superseded by the provisions of this Agreement.
(b) All commitments, if any, under the Original Credit Agreement, upon satisfaction of the conditions specified in Section 5.1, are hereby terminated, and the Tranche A Lenders shall be under no obligation to make available any Tranche A Loan or extend credit in any other form to the Borrower, except as expressly contemplated herein.
(c) Subject to and upon the terms and conditions herein set forthforth herein, each Tranche B Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) Tranche B Loans in Dollars to the Borrower, which Revolving Credit in an aggregate principal amount not exceeding such Tranche B Lender’s Tranche B Commitment. The aggregate amount of all Tranche B Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto U.S.$85,000,000. Amounts borrowed under this Section 2.1 and to the application repaid or prepaid may not be reborrowed. The Tranche B Commitments of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Tranche B Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be are several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Southeast Airport Group)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make (or in the case of any Rollover Lender (as defined in the First Incremental Agreement) on the First Incremental Agreement Effective Date, be deemed to make) a loan or loans to the Borrower, which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made (x) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (a) of the definition of Initial Term Loan Commitments, on the Closing Date, and (y) in the case of Initial Term Loans made in respect of Initial Term Loan Commitments described in clause (b) of the definition of Initial Term Loan Commitments, on the First Incremental Agreement Effective Date, (iv) shall be denominated in Dollars, (v) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (vi) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(i) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in U.S. Dollars, which Revolving Credit Loans (iA) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (B) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof), result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiC) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiD) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity DateDate (provided that notwithstanding the foregoing, the aggregate amount of all Revolving Credit Loans made on the Closing Date shall not exceed the Initial Revolving Borrowing Amount), (ivE) may, may at the option of the Borrower, Borrower be incurred Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vF) may be repaid and reborrowed in accordance with the provisions hereof. .
(ii) On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Eurodollar Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Eurodollar Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the BorrowerBorrower in U.S. Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(d)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, and (GE) may be repaid and reborrowed in accordance with the provisions hereofhereof and (F) shall mature no later than the date ten Business Days after such Swingline Loan is made. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from either the Borrower or the Required Lenders Administrative Agent 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 of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one same Business Day’s Days’ notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code any Debtor Relief Law in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing the same from and after such date of purchase.
(iii) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more applicable Revolving Credit Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit Lender in its capacity as a lender of Swingline Loans hereunder.
(iv) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) the Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract
Sources: Incremental Revolving Credit Commitment Increase Agreement (MultiPlan Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forthforth herein, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall a Tranche A Term Loan to Borrower on the Closing Date, in a principal amount not to exceed the Revolving Credit such Lender’s Tranche A Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and a Tranche B Term Loan to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time Borrower on and after the Closing Date and prior in a principal amount not to the Revolving Credit Maturity Date, (iv) mayexceed such Lender’s Tranche B Commitment. The Tranche A Term Loans, at the option of the Borrowereach Lender’s option, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid evidenced by one or more secured promissory notes (collectively, the “Tranche A Term Notes”) substantially in the form attached hereto as Exhibit 2.1(a)(1) and reborrowed the Tranche B Term Loans, at each Lender’s option, may be evidenced by one or more secured promissory notes (collectively, the “Tranche B Term Notes”) substantially in accordance with the provisions hereofform attached hereto as Exhibit 2.1(a)(2). On Once repaid, the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall may not be repaid in full. The obligations of each Lender hereunder shall be several and not jointreborrowed.
(b) Each Notwithstanding anything to the contrary contained herein (and without affecting any other provision hereof), the funded portion of the Loans to be made on the Closing Date by each Lender may at its option make any Eurodollar Loan (i.e., the amount advanced by causing any domestic or foreign branch or Affiliate of such Lender to make Borrower on the Closing Date) shall be equal to ninety-nine and one hundredth of one percent (99.01%) of the principal amount of such Loan; Loan (it being agreed that the full principal amount of each such Loan will be deemed outstanding on the Closing Date and Borrower shall be obligated to repay one hundred percent (100%) of the principal amount of each such Loan as provided that hereunder).
(c) As of the Closing Date, (i) any exercise of such option shall not affect the obligation certain proceeds of the Borrower Loans shall be applied as consideration for the assignment of the Indebtedness under the Senior Secured Notes pursuant to repay the assignments of mortgages on Material Real Property in the State of New York, dated as of the Closing Date (“New York Assignments of Mortgages”) and such Loan Indebtedness under the Senior Secured Notes shall be deemed to be assigned from the Collateral Agent to the Lenders on a pro rata basis and amended and restated as Loans outstanding hereunder and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation certain proceeds of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Tranche A Term Loans shall be repaid in full. The Swingline Lender applied as consideration for the assignment of the Indebtedness under the Existing Term Loan assigned pursuant to the New York Assignments of Mortgages and such Indebtedness under the Existing Term Loan shall not make any Swingline Loan after receiving a written notice be deemed to be assigned 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given Collateral Agent to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders a pro rata based on each such Lender’s Revolving Credit Commitment Percentage, basis and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such amended and restated as Tranche A Term Loans outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasehereunder.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (New Enterprise Stone & Lime Co., Inc.)
Loans. (a) Subject to and upon On the terms and subject to the conditions herein set forthforth in this Agreement, (i) each Revolving Lender severally hereby agrees to make a loan advances to or loans on behalf of the Borrower (eachindividually, a “Revolving Credit Loan” and collectively the “Revolving Loans”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and the Swingline Lender hereby agrees to the application make Swingline Loans to or on behalf of the proceeds thereofBorrower (individually, at any time result in a “Swingline Loan” and collectively the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii“Swingline Loans”) shall be made at any time and from time to time on and after any date (each such date on which a Loan is made, an “Loan Date”) during the Closing period from the Effective Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option end of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar LoansRevolving Period; provided that all Revolving Credit there shall be no more than two (2) Loan Dates during any calendar week (for the avoidance of doubt, a Swingline Refund Date is not in and of itself a Loan Date). The Multicurrency Loans shall be made solely by the Multicurrency Lenders and the Dollar Loans shall be made solely by the Dollar Lenders, in each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed case in accordance with Section 2.2(d)Section 2.2(d). Swingline Loans will only be funded in Dollars. The Borrower shall not request, and the provisions hereof. On Lenders shall have no obligation to advance, any Loan during the Revolving Credit Maturity Period if the Advance Rate Cap Condition is not satisfied or would not be satisfied on a pro forma basis after taking into account any such advance of a Loan.
(a) Each Term Lender hereby agrees to make advances to or on behalf of the Borrower (individually, a “Term Loan” and collectively the “Term Loans”) on the related Funding Date, pursuant to an Assignment Agreement or on any Conversion Date in each case in an aggregate principal amount at any one time outstanding up to but not exceeding (i) such Term Lender’s Term Commitment and (ii) as to all outstanding Revolving Credit Term Lenders, the Total Term Commitment at such time. The Multicurrency Loans shall be repaid in full. The obligations of each Lender hereunder made solely by the Multicurrency Lenders and the Dollar Loans shall be several and not jointmade solely by the Dollar Lenders, in each case in accordance with Section 2.2(d)Section 2.2(d).
(b) Each Under no circumstances shall any Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan Revolving Loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall notLoan if, after giving effect thereto to such Loan and to the application any purchase of the proceeds thereofEligible Collateral Obligations in connection therewith, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (Gi) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a an Unmatured Event of Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2would exist, (ii) whether any conditions specified in Section 7 are then satisfiedif immediately after giving effect thereto, a Borrowing Base Deficiency would exist or (iii) whether a Default or an Event of Default has occurred and is continuingthe Loans outstanding (using the Applicable Conversion Rate) would exceed the Facility Amount, (iv) the date of Foreign Currency Loan Amount would exceed the Foreign Currency Sublimit on such Mandatory Borrowing or day, (v) any reduction in a violation of Applicable Law would occur or (vi) the Total Commitment after any such Swingline Loans were madeAdvance Rate Cap Condition is not satisfied. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, Subject to the extent attributable terms of this Agreement, during the Revolving Period, the Borrower may borrow, reborrow, repay and prepay (subject to the purchased participation, shall be payable to the Lender purchasing same from and after such date provisions of purchaseSection 2.42.4) one or more Revolving Loans.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Blue Owl Capital Corp)
Loans. i) Subject to and upon the terms and conditions set forth in the Amendment, each Lender having an “Initial Term Loan Commitment” severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower, which (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Term Loan Commitment, (iii) shall be made on the Effective Date, (iv) shall be denominated in U.S. Dollars, (v) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans, and (vi) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(a) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in U.S. Dollars, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof), result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing Effective Date and prior to the Revolving Credit Maturity Date, (ivv) may, may at the option of the Borrower, Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided provided, that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(ic) Subject to and upon the terms and conditions herein set forth, the each Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Effective Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan” and collectively, the “Swingline Loans”) to the BorrowerBorrower in U.S. Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(d), (C) shall not exceed at any time outstanding the Swingline CommitmentCommitment of such Swingline Lender, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, effect and (GE) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The No Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower Borrower, the Administrative Agent or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the such Swingline Lender shall have received written notice of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(iid) On any Business Day, the Any Swingline Lender may, (x) may in its sole discretiondiscretion on any Business Day prior to the tenth Business Day after the date of extension of any Swingline Loan and (y) shall on the tenth Business Day after such extension date (so long as such Swingline Loan remains outstanding), give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit LoansLoans denominated in U.S. Dollars, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same immediately succeeding Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the such Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the such Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 7.1 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the applicable Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the such Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the such Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Fourth Amendment Agreement (LPL Financial Holdings Inc.)
Loans. (a) Section 2.1(a) of the Loan Agreement is hereby amended by deleting the proviso at the end of the first sentence of such Section in its entirety and replacing it with the following: “provided, that, in each case, after giving effect to any such Tranche A Loan or Tranche B Loan, (x) the principal amount of the Tranche A Loans, Tranche B Loans and Letter of Credit Accommodations outstanding with respect to any Borrower shall not exceed the lesser of (1) the Borrowing Base of such Borrower at such time or (2) the Revolving Loan Limit of such Borrower at such time and (y) the aggregate principal amount of the Loans and Letter of Credit Accommodations outstanding to all Borrowers shall not exceed the lesser of (1) the Maximum Credit or (2) the Eligible Working Capital.”
(b) Sections 2.1(c), (d), (e), (f) and (g) of the Loan Agreement are hereby amended by deleting such Sections in their entirety and replacing them with the following:
(c) Except in Agent’s discretion, with the consent of all Lenders, or as otherwise provided herein, (i) the aggregate amount of the Loans and Letter of Credit Accommodations outstanding at any time shall not exceed the Maximum Credit or the Eligible Working Capital, (ii) the aggregate amount of the Tranche A Loans and Letter of Credit Accommodations outstanding at any time to a Borrower shall not exceed the Tranche A Loan Limit of such Borrower, (iii) the aggregate amount of the Tranche B Loans outstanding at any time to a Borrower shall not exceed the Tranche B Loan Limit of such Borrower, (iv) the aggregate amount of the Revolving Loans and Letter of Credit Accommodations outstanding at any time to a Borrower shall not exceed the Borrowing Base of such Borrower or the Revolving Loan Limit of such Borrower, and (v) the aggregate principal amount of Revolving Loans and Letter of Credit Accommodations outstanding at any time to a Borrower based on the Eligible Inventory of such Borrower shall not exceed the Inventory Loan Limit for such Borrower.
(d) In the event that the aggregate amount of the Loans and Letter of Credit Accommodations outstanding at any time exceeds the Maximum Credit or the Eligible Working Capital, or the aggregate amount of the Tranche A Loans and Letter of Credit Accommodations outstanding at any time to a Borrower exceeds the Tranche A Loan Limit of such Borrower, or the aggregate amount of the Tranche B Loans outstanding at any time to a Borrower exceeds the Tranche B Loan Limit of such Borrower, or the aggregate amount of the Revolving Loans and Letter of Credit Accommodations outstanding at any time to a Borrower exceeds the Borrowing Base of such Borrower or the Revolving Loan Limit of such Borrower, or the aggregate principal amount of Revolving Loans and Letter of Credit Accommodations based on Eligible Inventory of a Borrower exceeds the Inventory Loan Limit of such Borrower, or the aggregate amount of the outstanding Letter of Credit Accommodations exceeds the sublimit for Letter of Credit Accommodations set forth in Section 2.2(e) hereof, such event shall not limit, waive or otherwise affect any rights of Agent or Lenders in such circumstances or on any future occasions and Borrowers shall, upon demand by Agent, which may be made at any time or from time to time, immediately repay to Agent the entire amount of any such excess(es) for which payment is demanded.
(e) If any Borrower (or Administrative Borrower on behalf of such Borrower) desires to borrow a Tranche B Loan, such Borrower (or Administrative Borrower on behalf of such Borrower) shall, pursuant to the terms of Section 2.1(f) hereof, give Agent no less than five (5) Business Days’ prior notice thereof. Notwithstanding this notice requirement, it is the intention of the Tranche A Lenders and the Tranche B Lenders that the aggregate outstanding principal amount of Revolving Loans be allocated among the Tranche A Lenders and the Tranche B Lenders ratably in accordance with their respective Pro Rata Shares (determined in accordance with the terms of clause (d) of the definition of Pro Rata Share based on the respective Tranche A Commitments of Tranche A Lenders and Tranche B Commitments of Tranche B Lenders or, if the Tranche A Commitments and Tranche B Commitments are terminated, based on the respective Tranche A Commitments of Tranche A Lenders and Tranche B Commitments of Tranche B Lenders in effect immediately preceding such termination).
(f) By no later than 11:00 a.m. (New York City time) on the last Business Day of each week or such other Business Day as Agent may from time to time request or as Administrative Borrower may desire (each such date, a “Tranche B Loan Deemed Borrowing Request Date”), Administrative Borrower shall deliver to Agent a forecast (each, a “Borrowing Forecast”) which projects in good faith the aggregate amount of Revolving Loans that Borrowers or Administrative Borrower will request to be borrowed on each of the next succeeding five (5) Business Days. By no later than 12:00 noon (New York City time) on each Tranche B Loan Deemed Borrowing Request Date, Administrative Borrower shall be deemed to have made a request to Agent for the borrowing of Tranche B Loans which are Prime Rate Loans on the fifth Business Day immediately following such Tranche B Loan Deemed Borrowing Request Date, or, if such Business Day is a day on which any Tranche B Lender is required to close under the laws of the State of Alabama, the next Business Day (each such date, a “Tranche B Loan Deemed Funding Date”), in an amount which, when combined with the then outstanding aggregate principal amount of all Tranche B Loans, would equal 34.532% percent of the sum of (i) the aggregate outstanding principal amount of all Revolving Loans on such Tranche B Loan Deemed Borrowing Request Date plus (ii) the aggregate amount of Revolving Loans projected to be borrowed for the five (5) Business Days commencing on such Tranche B Loan Deemed Borrowing Request Date as set forth in the Borrowing Forecast delivered on such Tranche B Loan Deemed Borrowing Request Date (or such lesser amount as may be borrowed without contravening the terms of Section 2.1(c) hereof).
(g) Agent shall, by no later than 3:00 p.m. (New York City time) on each Tranche B Loan Deemed Borrowing Request Date, provide written notice to the Tranche B Lenders setting forth the amount of the Tranche B Loans deemed to have been requested to be borrowed by Administrative Borrower and the date that such Tranche B Loans are requested to be borrowed, which date shall be the fifth Business Day immediately following such Tranche B Loan Deemed Borrowing Request Date. Provided that the weekly Borrowing Base Certificate most recently delivered to Agent pursuant to Section 7.1(a)(i)(E) hereof is made available to the Tranche B Lenders, each Tranche B Lender shall remit, in immediately available funds, the amount of such Tranche B Lender’s Pro Rata Share of the requested borrowing of Tranche B Loans to an account designated by Agent by no later than 12:00 p.m. (New York City time) on the Tranche B Loan Deemed Funding Date. Agent may apply the proceeds of all Tranche B Loans to repay the outstanding principal amount of the Tranche A Loans, it being the intention of the Tranche A Lenders and the Tranche B Lenders that the aggregate outstanding principal amount of Revolving Loans be allocated ratably among the Tranche A Lenders and the Tranche B Lenders in accordance with their respective Pro Rata Shares (determined in accordance with the terms of clause (d) of the definition of Pro Rata Share based on the respective Tranche A Commitments of Tranche A Lenders and Tranche B Commitments of Tranche B Lenders or, if the Tranche A Commitments and Tranche B Commitments are terminated, based on the respective Tranche A Commitments of Tranche A Lenders and Tranche B Commitments of Tranche B Lenders in effect immediately preceding such termination)
(h) Subject to and upon the terms and conditions herein set forthcontained herein, each in Amendment No. 14 and in the other Financing Agreements, the Initial Tranche C Lender severally agrees to make a loan fund the Tranche C Loan to or loans (each, a “Revolving Credit Loan”) for the benefit of Borrowers on the Amendment No. 14 Effective Date in the aggregate amount equal to the Borrower, which Revolving Credit Loans Tranche C Commitment. The Tranche C Loan (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto be repaid, together with interest and to the application of the proceeds thereof)other amounts payable with respect thereto, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, this Agreement and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2other Financing Agreements, (ii) whether any conditions specified in Section 7 are then satisfiedshall be secured by all of the Collateral, and (iii) whether a Default or an Event shall be subject to the Guarantees made by Borrowers and Guarantors in favor of Default has occurred and is continuing, (iv) Agent. Except for the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment making of the Swingline Tranche C Loan as set forth in this Section 2.1(h), Borrowers shall have no right to request from Tranche C Lenders (including, without limitation, the Initial Tranche C Lender), and Tranche C Lenders (including, without limitation, the Initial Tranche C Lender) shall have no obligation to make, any Mandatory Borrowing cannot for additional loans or advances to Borrowers under this Section 2.1(h) after the Amendment No. 14 Effective Date and any reason be made on the date otherwise required above (including as a result repayments of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it Tranche C Loan shall forthwith purchase from the Swingline Lender (without recourse not be subject to any readvance to or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasereborrowing by Borrowers.”
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement (including without limitation Section 3), each Lender severally (severally, not jointly or jointly and severally) agrees to make a loan or loans (eacha) on the Closing Date, a “Revolving Credit Loan”) Tranche A Loan to the BorrowerBorrower in an aggregate principal amount equal to such ▇▇▇▇▇▇'s Pro Rata Share of $40,000,000, which Revolving Credit Loans and (ib) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after thereafter, one or more Tranche A Loans to Borrower in an aggregate principal amount that will not result in the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option aggregate amount of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Tranche A Loans made by each any Lender to Borrower pursuant to this Section 2.1(a) exceeding such Lender's Tranche A Commitment (without giving effect to any reduction thereof as a result of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely funding of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointany Tranche A Loans).
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender From and after the Sixth Amendment Effective Date, and subject to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forthof this this Agreement (including without limitation Section 3), the Swingline each Tranche B Lender in its individual capacity agrees(severally, at any time not jointly or jointly and severally) agrees to make from time to time on and after thereafter, one or more Tranche B Loans to Borrower in an aggregate principal amount that will not result in the Closing Date and prior aggregate amount of Tranche B Loans made by any Tranche B Lender to the Swingline Maturity Date, Borrower pursuant to make a loan or loans this Section 2.1(b) exceeding such Tranche B Lender's Tranche B Commitment (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after without giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including thereof as a result of the commencement funding of any Tranche B Loans).
(c) After giving effect to the funding of any Loan by a proceeding under Lender hereunder, the Bankruptcy Code in respect portion of such ▇▇▇▇▇▇'s Commitment equal to the Borrower)amount of such Loan shall immediately terminate without further action. Subject to the terms and conditions set forth herein, each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline unpaid principal balance of all Loans as and all accrued and unpaid interest thereof shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal due and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased andof termination of this Agreement, whether by its terms, by prepayment, or by acceleration. Subject to the extent attributable to the purchased participationterms and conditions set forth herein, shall amounts borrowed under this Section 2.1 and prepaid or repaid may not be payable to the Lender purchasing same from and after such date of purchasereborrowed.
Appears in 1 contract
Loans. (a) Subject to the terms and conditions hereof, each Term Lender severally agrees to make a term loan (such term loan, a “Term Loan” and, collectively, the “Term Loans”) to the Borrower on the Effective Date in an amount not to exceed the amount of the Term Loan Commitment of such Term Lender. Such Term Loan shall (i) be denominated in Dollars and (ii) except as hereinafter provided, shall, at the option of the Borrower, be maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that except as other-wise specifically provided in Section 2.10(b), all Term Loans comprising the same Borrowing shall at all times be of the same Type. Once repaid, Term Loans may not be reborrowed.
(b) Subject to and upon the terms and conditions herein set forthforth herein, each Lender with a Revolving Loan Commitment severally agrees to make a loan or loans (eachmake, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and or after the Closing Effective Date and prior to the Revolving Credit Loan Maturity Date, a revolving loan or revolving loans (iveach, a “Revolving Loan” and, collectively, the “Revolving Loans”) mayto the Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Base Rate Loans or Eurodollar Loans; , provided that except as otherwise specifically provided in Section 2.10(b), all Revolving Credit Loans made by each of the Lenders pursuant to comprising the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans shall at all times be of the same Type and Type, (viii) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (Civ) shall not exceed for any such Lender at any time outstanding the Swingline Commitmentthat aggregate principal amount which, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and when added to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 product of (x) rescission of all such notices from the party or parties originally delivering such notice or Lender’s RL Percentage and (y) the waiver aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, equals the Revolving Loan Commitment of such Default or Event of Default in accordance with the provisions of Section 13.1 or that Lender at such Default or Event of Default is no longer continuingtime.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Loans. (a) Subject to and upon the other terms and conditions set forth herein (including without limitation, the provisions set forthforth in Section 2.1 hereof), each Lender severally agrees the Loans shall be advanced to make a loan or loans Borrower as follows:
(eachi) on the Closing Date, a first advance shall be made to Borrower in the aggregate principal amount of $25,906,736 (“Revolving Credit LoanFirst Advance”) provided that (x) the conditions set forth in Sections 3.1 and 3.2 have been satisfied (y) the Borrower hereby irrevocably directs the Lenders to use $906,736 of the proceeds of the First Advance to pay the First Structuring Fee and as such, Lenders shall net fund the First Advance to account for the payment of the First Structuring Fee;
(ii) within seven (7) days after the end of any Additional Loan Period in which a Share Price Event occurs, upon Borrower’s exercise of the Second Advance Option (to the Borrowerextent available), which Revolving Credit a second advance of Loans shall be made to Borrower in an aggregate amount equal to (iA) $5,000,000 minus the principal amount of the Put Notes (as defined in the Exchange Agreement and, for purposes of this calculation, excluding the 3.5% structuring fee charged in connection therewith) issued (“Additional Principal Amount”) plus (B) (.035 multiplied times the Additional Principal Amount)/.965 (the amount resulting from the calculation in this clause (B), the “Additional Structuring Fee Amount”) (the Additional Principal Amount plus the Additional Structuring Fee Amount, the “Second Advance”), in each case, provided that (x) the conditions set forth in Section 3.2 have been satisfied, (y) the Borrower hereby irrevocably directs the Lenders to use an amount of the proceeds of the Second Advance equal to the Additional Structuring Fee Amount to pay the Second Structuring Fee and as such, Lenders shall net fund the Second Advance to account for the payment of the Second Structuring Fee and (z) the principal amount of the Second Advance plus the principal amount of the Put Notes (including the 3.5% structuring fee charged in connection therewith) shall not exceed $5,181,348 at anytime (excluding, for purposes of this calculation, PIK Interest). If the Revolving Credit Commitment of such Lender Borrower does not exercise the Second Advance Option within seven (7) days after giving effect thereto and to the application end of the proceeds thereof), (ii) shall not, after giving effect thereto and to Second Additional Loan Period or a Share Price Event does not occur by the application end of the proceeds thereofSecond Additional Loan Period, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after shall remain at $25,906,736 and the Lenders shall have no commitment or obligation to make any such Swingline Loans were made. In other than the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseFirst Advance.
Appears in 1 contract
Sources: Term Loan Agreement (Gevo, Inc.)
Loans. (a) Subject to and upon the terms and conditions herein set forthherein, each Lender severally agrees commits to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and Borrower from time to time during the period commencing on and after the Closing Effective Date and prior ending on the Maturity Date (each such commitment, a “Commitment”) in an aggregate principal amount equal to the Revolving Credit Maturity Dateamount set forth beside such Lender’s name in Schedule A under the heading “Commitment”, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit any Loans made by each of any Lender as requested by the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed Borrower will not result in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay Lender’s aggregate Loans and LC Exposure hereunder exceeding such Loan and Lender’s Commitment, or (ii) in exercising such option, such Lender shall use its reasonable efforts the aggregate Loans and LC Exposure outstanding hereunder exceeding the aggregate Commitments of all Lenders. Within the foregoing limits and subject to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forthforth herein, the Swingline Lender in its individual capacity agreesBorrower may borrow, at any time repay and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR reborrow Loans, by way of Cdn.$ Loans and/or U.S.$ Loans. Subject to Section 2.7(h) and Section 2.8, Cdn.$ Loans shall consist entirely of Prime Rate Loans and B/As (or, as applicable, B) shall have the benefit of the provisions of Section 2.1(c)(ii/A Equivalent Loans), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline U.S.$ Loans shall be repaid in full. 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 consist entirely of Default exists Base Rate Loans and is continuing until such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Eurodollar Loans, in which each case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on as the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline LoansBorrower may request in accordance herewith. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount Without limiting any of the Mandatory Borrowing may not comply with foregoing, the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred Borrower hereby acknowledges and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code agrees that its liability in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause absolute and unconditional. At the commencement of each Contract Period for any B/A (or, as applicable, any B/A Equivalent Loan) or Interest Period for any Eurodollar Loan, such Lender to share Loan shall be in an aggregate amount that is an integral multiple of $500,000 (the “Minimum Denomination”) and not less than $5,000,000, in each case measured in the currency of such Swingline Loan. Cdn.$ Loans ratably based upon their respective Revolving Credit Commitment Percentagesand U.S.$ Loans of more than one Type may be outstanding at the same time; provided that all principal and interest payable on such Swingline Loans there shall not at any time be for the account more than a total of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase5 B/A Borrowings or 5 Eurodollar Borrowings outstanding.
Appears in 1 contract
Sources: Tranche a Exit Facility Agreement (Microcell Telecommunications Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each from the Closing Date and until the Commitment Termination Date (i) Lender severally agrees (A) to make a loan or loans available advances (each, a “"Revolving Credit Loan”Advance") and (B) to incur Letter of Credit Obligations, in an aggregate outstanding amount for any Borrower not to exceed the Borrowing Availability of such Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to any Borrower may at the application request of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at Leading Borrower as agent for such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and Borrower from time to time on borrow, repay and after the Closing Date reborrow, and prior may cause Lender to the Revolving incur Letter of Credit Maturity DateObligations, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointunder this Section 1.1.
(b) Each Leading Borrower, as agent for each Borrower, shall request each Revolving Credit Advance by written notice to Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate substantially in the form of such Exhibit A (each a "Notice of Revolving Credit Advance") given no later than 11:00 A.M. (New York City time) on the Business Day of the proposed advance. Lender shall be fully protected under this Agreement in relying upon, and shall be entitled to make such Loan; provided that rely upon, (i) any exercise Notice of such option shall not affect the obligation of the Borrower Revolving Credit Advance believed by Lender to repay such Loan be genuine, and (ii) in exercising such optionthe assumption that the Persons making electronic requests or executing and delivering a Notice of Revolving Credit Advance were duly authorized, such unless the responsible individual acting thereon for Lender shall use its reasonable efforts to minimize any increased costs have actual knowledge to the contrary. As an accommodation to Borrowers, Lender may permit telephonic, electronic, or facsimile requests for a Revolving Credit Advance and electronic or facsimile transmittal of instructions, authorizations, agreements or reports to Lender by any Borrower. Unless Borrowers specifically direct Lender in writing not to accept or act upon telephonic, facsimile or electronic communications from any Borrower, Lender shall have no liability to any Borrower resulting therefrom (which obligation for any loss or damage suffered by any Borrower as a result of Lender's honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically and purporting to have been sent to Lender by any Borrower and Lender shall have no duty to verify the origin of any such communication or the identity or authority of the Person sending it. The Revolving Credit Loan shall be evidenced by, and be repayable in accordance with the terms of, the Revolving Credit Note and this Agreement
(c) In making any Loan hereunder Lender shall not require it be entitled to take, rely upon the most recent Borrowing Base Certificate delivered to Lender by such Borrower and other information available to Lender. Lender shall be under no obligation to make any further Revolving Credit Advance to any Borrower or refrain from taking, actions that it determines would result incur any other Obligation if any Borrower shall have failed to deliver a Borrowing Base Certificate to Lender by the time specified in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply4.1(b).
(id) Subject to and upon the terms and conditions herein set forthof this Agreement, Lender agrees to make the Swingline Lender in its individual capacity agrees, at any time and from time Term Loan A-1 to time Leading Borrower on and after the Closing Date and prior to in the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to original principal amount specified in the Borrower, which Swingline Loans (A) Term Note A-1. The Term Loan A-1 shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effectevidenced by, and (G) may be repaid and reborrowed repayable in accordance with the provisions hereof. On terms of, the Swingline Maturity DateTerm Note A-1 and this Agreement.
(f) Subject to the terms and conditions of this Agreement and satisfaction of the Mortgage Conditions, all outstanding Swingline Loans Lender agrees to make the Term Loan B to Leading Borrower on the Closing Date in the original principal amount specified in the Term Note B. The Term Loan B shall be repaid in full. 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 evidenced by, and is continuing until such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default be repayable in accordance with the provisions terms of Section 13.1 or that such Default or Event of Default is no longer continuingthe Term Note B and this Agreement.
(iig) On any Business Day, the Swingline Lender may, in its sole discretion, give notice Notwithstanding anything to the Lenderscontrary contained in this Agreement, with a copy including Schedule C, Lender shall have no obligations to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing incur Letter of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be Obligations for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseBorrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Edac Technologies Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender severally agrees to make a loan or loans (eachagrees, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Effective Date and prior to the Revolving Credit Maturity Commitment Expiration Date, to make a loan or loans (iveach, a “Loan” and, collectively, the “Loans”) to the Account Parties (on a joint and several basis) which Loans (i) may be made and maintained only in Dollars; (ii) may be repaid and reborrowed in accordance with the provisions hereof; (iii) except as hereinafter provided, may, at the option of the Borrowerany Account Party, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; , provided that all Revolving Credit Loans made by each as part of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided specified herein, consist entirely of Revolving Credit Loans of the same Type and Type; (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (Civ) shall not exceed at any time outstanding the Swingline Commitment, be made (D) and shall not exceed, for be required to be made) by any such Lender, Lender if the Revolving making of same would cause the aggregate Credit Commitment Exposures of such Lender, all Lenders taken together (E) shall not, after giving effect thereto and to the application use of the proceeds thereof, result at thereof on the date of the incurrence thereof to repay any time in amounts theretofore outstanding pursuant to this Agreement) to exceed the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment as then in effect, (v) shall not be made (and shall not be required to be made) by any Lender if the making of same would cause the aggregate Loan Exposures of all Lenders taken together (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) to exceed the Loan Sublimit and (Gvi) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make be made (and shall not be required to be made) by any Swingline Loan after receiving a written notice from Lender if the Borrower or making of the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as same would cause the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver Credit Exposure of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
Lender (ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice after giving effect to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing use of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made proceeds thereof on the same Business Day (provided that such notice is given date of the incurrence thereof to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Dayrepay any amounts theretofore outstanding pursuant to this Agreement) by all Lenders pro rata based on each to exceed such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing as then in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseeffect.
Appears in 1 contract
Sources: Unsecured Revolving Credit and Letter of Credit Facility Agreement (Third Point Reinsurance Ltd.)
Loans. Unless otherwise defined herein, terms used herein have the meanings provided in the Credit Agreement. WWI also promises to pay interest on the unpaid principal amount hereof from time to time outstanding from the date hereof until maturity (awhether by acceleration or otherwise) Subject and, after maturity, until paid, at the rates per annum and on the dates specified in the Credit Agreement. Payments of both principal and interest are to be made in U.S. Dollars in same day or immediately available funds to the account designated by the Administrative Agent pursuant to the Credit Agreement. This Note is one of the Term A-1 Notes referred to in, and upon evidences Indebtedness incurred under, the Credit Agreement, to which reference is made for a description of the security for this Note and for a statement of the terms and conditions herein set forth, each Lender severally agrees on which WWI is permitted and required to make a loan prepayments and repayments of principal of the Indebtedness evidenced by this Note and on which such Indebtedness may be declared to be immediately due and payable. All parties hereto, whether as makers, endorsers, or loans (eachotherwise, severally waive presentment for payment, demand, protest and notice of dishonor. WEIGHT WATCHERS INTERNATIONAL, INC. By: Name: Title: $ January 26, 2007 FOR VALUE RECEIVED, the undersigned, WEIGHT WATCHERS INTERNATIONAL, INC., a Virginia corporation (“Revolving Credit LoanWWI”), promises to pay to the order of (the “Lender”) the principal sum of ($ ) or, if less, the aggregate unpaid principal amount of all Term B Loans shown on the schedule attached hereto (and any continuation thereof) made (or continued) by the Lender pursuant to the Sixth Amended and Restated Credit Agreement, dated as of May 8, 2006 (as amended by the First Amendment, dated as of January 26, 2007, and as further amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, which Revolving Credit Loans the various financial institutions party thereto (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof“Lenders”), (ii) shall notthe Syndication Agent and the Administrative Agent, after giving effect thereto and to the application of the proceeds thereof, at any time result payable in installments as set forth in the Total Revolving Credit Outstandings at such time exceed Agreement, with a final installment (in the Maximum Amount then amount necessary to pay in effectfull this Note) due and payable on the Stated Maturity Date for Term B Loans. Unless otherwise defined herein, (iii) shall be made at any time and terms used herein have the meanings provided in the Credit Agreement. WWI also promises to pay interest on the unpaid principal amount hereof from time to time on and outstanding from the date hereof until maturity (whether by acceleration or otherwise) and, after the Closing Date and prior to the Revolving Credit Maturity Datematurity, (iv) mayuntil paid, at the option rates per annum and on the dates specified in the Credit Agreement. Payments of both principal and interest are to be made in U.S. Dollars in same day or immediately available funds to the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made account designated by each of the Lenders Administrative Agent pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans Agreement. This Note is one of the same Type Term B Notes referred to in, and (v) may be repaid and reborrowed in accordance with evidences Indebtedness incurred under, the provisions hereof. On the Revolving Credit Maturity DateAgreement, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation which reference is made for a description of the Borrower to repay such Loan security for this Note and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation for a statement of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forthon which WWI is permitted and required to make prepayments and repayments of principal of the Indebtedness evidenced by this Note and on which such Indebtedness may be declared to be immediately due and payable. All parties hereto, the Swingline Lender in its individual capacity agreeswhether as makers, at any time endorsers, or otherwise, severally waive presentment for payment, demand, protest and from time to time on and after the Closing Date and prior notice of dishonor. WEIGHT WATCHERS INTERNATIONAL, INC. By: Name: Title: This SUPPLEMENT, dated as of January 26, 2007 (this “Supplement”), to the Swingline Maturity DateExisting Credit Agreement referred to below, is among WEIGHT WATCHERS INTERNATIONAL, INC., a Virginia corporation (the “Borrower”), certain Lenders (such term, and other capitalized terms used in this Supplement, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit meanings set forth in Section I below) and The Bank of the provisions of Section 2.1(c)(ii)Nova Scotia, (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to Administrative Agent for the Lenders, with a copy to Credit Suisse Securities (USA) LLC and JPMorgan Securities Inc. acting as Joint Bookrunners and Joint Lead Arrangers for the Borrower, that all then-outstanding Swingline Term A-1 Loans shall be funded with a Borrowing of Revolving Credit and the Term B Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowingand Bank of America, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, N.A. and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including Fortis Capital Corp. acting as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseCo-Documentation Agents.
Appears in 1 contract
Sources: Credit Agreement (Weight Watchers International Inc)
Loans. (a) Subject Notwithstanding the expiration of the Commitments under the Credit Agreement on the Stated Maturity Date or anything else to and upon the contrary herein or in any other Loan Documents, subject to the terms and conditions herein hereof and in reliance upon the representations and warranties set forthforth herein, each Lender severally agrees severally, and not jointly, acknowledges that it may, in its sole and absolute discretion and without any obligation, make term loans available to make a loan or loans the Borrower in Dollars during the Forbearance Period (each, a “Revolving Credit LoanForbearance Loans”) to the Borrowerin accordance with this Section 6.01 provided, which Revolving Credit Loans however, (i) no Lender shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and have any commitment or obligation to the application of the proceeds thereof)make any Forbearance Loans, (ii) each Forbearance Loan shall notconstitute a Loan under the Credit Agreement for all purposes (provided that no Lender shall have any obligation to make any Forbearance Loans) and shall be governed by, after giving effect thereto and to deemed existing under, the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effectAgreement, (iii) the sum of the aggregate principal amount of the outstanding Forbearance Loans shall be made not at any time and from time to time on and after exceed $8,926,580.95 (the Closing Date and prior to the Revolving Credit Maturity Date“Forbearance Cap”), (iv) may, at the option of the Borrower, Lenders shall not be incurred required to make more than three advances hereunder and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of such advances shall be in an amount determined by the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type in their sole and absolute discretion and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations amount of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (Aincluding any Forbearance Loans) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) outstanding shall not exceed at any time outstanding the Swingline Commitmentamount of Loans authorized to be made by the applicable Financing Orders. Amounts repaid or prepaid on any Term Loan may not be reborrowed. The foregoing notwithstanding, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto if and to the application extent that Administrative Agent or any Lender makes any Forbearance Loans, notwithstanding the termination of the proceeds thereofCommitments under the Credit Agreement, result at the occurrence of the Stated Maturity Date, and occurrence of any time New Default, whether specified herein or otherwise, (a) such Forbearance Loan shall be made, issued, caused to be issued, or executed, as applicable, in Total Revolving Credit Outstandings at Administrative Agent’s and such time exceeding the Maximum Amount then in effectLender’s sole and absolute discretion, and (Gb) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans no such action shall be repaid in full. The Swingline Lender shall not make construed as (i) a waiver or forbearance of any Swingline of Administrative Agent’s, Collateral Agent’s and Lenders’ rights, remedies, and powers against Borrower, any other Loan after receiving a written notice from the Borrower Party or the Required Lenders stating that Collateral, (ii) a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such any Default or Event of Default Default, including, without limitation, in accordance connection with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time)Specified Event, or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event waiver of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseNew Default.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each Lender severally agrees to make one or more revolving credit loans to F.Y.I. from time to time from and including the Closing Date to but excluding the Loans Termination Date up to but not exceeding the amount of such Lender's Commitment as then in effect; provided, however, that (i) the Outstanding Credit applicable to a loan Lender shall not at any time exceed the remainder of such Lender's Commitment then in effect minus such Lender's Commitment Percentage of the Swingline Advances then outstanding and (ii) the Outstanding Credit of all Lenders shall not at any time exceed the remainder of the Commitments then in effect minus the Swingline Advances then outstanding. (Such revolving credit loans referred to in this Section 2.1(a) now or hereafter made by the Lenders to F.Y.I. from and including and after the Closing Date are hereinafter collectively called the "Loans".) All loans made by the Lenders (each, a “Revolving Credit Loan”as defined in this Agreement or the Prior Agreement) or their predecessors in interest to F.Y.I. or any Subsidiary of F.Y.I. under the Prior Agreement that are outstanding as of the Closing Date shall hereafter be Loans hereunder and shall be deemed to have been made to F.Y.I. under this Agreement. Subject to the Borrowerforegoing limitations and the other terms and conditions of this Agreement, F.Y.I. may, prior to the Loans Termination Date, borrow, repay and reborrow the Loans hereunder. Notwithstanding anything to the contrary contained in this Agreement, F.Y.I. may from time to time request, and Paribas may at its discretion from time to time advance (but shall in no event be obligated to advance), Loans which Revolving Credit are to be funded solely by Paribas (the "Swingline Advances"); provided, however, that (A) the aggregate principal amount of the Swingline Advances outstanding at any time shall not exceed $1,000,000 and the aggregate principal amount of the Loans outstanding at any time (iinclusive of the Swingline Advances) shall not exceed the Revolving Credit Commitment aggregate principal amount of such the Commitments, (B) all Swingline Advances shall be and shall remain as Prime Rate Loans, and (C) Paribas shall give the Agent and each Lender written notice of the aggregate outstanding principal amount of the Swingline Advances upon the written request of the Agent or any Lender (after giving effect thereto and but no more often than once every calendar quarter). Furthermore, upon one Business Day's prior written notice given by Paribas to the application of Agent and the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made other Lenders at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date(including, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agreeswithout limitation, at any time and from time to time on and after following the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit occurrence of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 Default) and, in any event and is continuing until without the necessity of any such time notice, on the Business Day immediately preceding the Loans Termination Date, each Lender (including, without limitation, Paribas) severally agrees, as provided in the Swingline Lender shall have received written notice first sentence of (x) rescission this Section 2.1(a), and notwithstanding anything to the contrary contained in this Agreement, the existence of all such notices from the party or parties originally delivering such notice or (y) the waiver of such any Default or Event of Default or the inability or failure of F.Y.I. or any of its Subsidiaries or any other Loan Party to satisfy any condition precedent to funding any of the Loans contained in accordance with Article 6 (which conditions precedent shall not apply to this sentence), to make a Loan, in the provisions form of Section 13.1 or that such Default or Event a Prime Rate Loan, in an amount equal to its Commitment Percentage of Default is no longer continuing.
(ii) On any Business Day, the aggregate principal amount of the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment PercentageAdvances then outstanding, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.promptly paid
Appears in 1 contract
Sources: Credit Agreement (Fyi Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forthforth herein, the Swingline Lender in its individual capacity agreeseach Lender, at any time severally and from time to time on and after the Closing Date and prior to the Swingline Maturity Datenot jointly, agrees to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans as Borrower may request, on each Borrowing Date, a delayed draw term loan (A) shall be ABR Loanseach such loan, (B) shall have the benefit of the provisions of Section 2.1(c)(iia “Loan”), (C) shall not exceed at any time outstanding in an amount up to the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment unfunded amount of such Lender’s applicable Loan Commitment; provided that no Lender shall have an obligation to make a Loan in excess of such Lender’s Loan Commitment. Each Lender’s Loan Commitment shall automatically be reduced immediately upon and in the principal amount of each Loan made hereunder. If there exists any unfunded Loan Commitments on the Commitment Termination Date, (E) then on such date each Lender shall notmake, and the Borrower shall accept, a Loan equal to the amount of such Lender’s remaining unfunded Loan Commitment such that after giving effect thereto and to the application making of such Loans, the aggregate principal amount of Loans made by the Lenders shall be equal to the amount of the proceeds thereofLoan Commitments. Each Lender’s Loan Commitment shall terminate immediately and without further action on the Commitment Termination Date after giving effect to the funding, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effectif any, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that Lender’s Loan on such Default or Event of Default is no longer continuingdate.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice The Borrower unconditionally promises to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given repay to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each Maturity Date (or such Lender’s Revolving Credit Commitment Percentage, and earlier date if the proceeds thereof Loan Commitments shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice terminated in whole pursuant to each Mandatory Borrowing in this Agreement) the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the aggregate principal amount of Loans outstanding on such date, together with all accrued but unpaid interest thereon, all fees (including, without limitation, the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2Unused Commitment Fees, (iiif any) whether any conditions specified in Section 7 are then satisfied, and other Obligations payable hereunder.
(iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code Any principal amounts repaid in respect of the Borrower)any Loan, each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse in whole or warranty) such participation of the outstanding Swingline Loans as shall in part, may not be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasereborrowed.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forthhereof, each Lender severally agrees to make a loan or loans (eachindividually, a “Revolving Credit an "Initial Loan”" and collectively, the "Initial Loans") to the BorrowerCompany in an aggregate principal amount equal to such Lender's Commitment. The Initial Loans will be available beginning on the Closing Date, which Revolving Credit Loans subject to the delivery of a Borrowing Notice in accordance with Section 2.2, through the Initial Expiration Date. If requested in writing by the Company (i) shall not exceed to accommodate delays in the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application closing of the proceeds thereof), Permitted Acquisitions or (ii) shall not, after giving effect thereto and to provide additional time for the application preparation of pro forma financial statements and/or the preparation of financial information to be included in an offering memorandum for the issuance of the proceeds thereofTake-Out Debt, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option availability of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Initial Loans shall be repaid in fullextended to the Extended Expiration Date. The obligations of each Lender hereunder Any Commitments not drawn on the Initial Expiration Date or the Extended Expiration Date, as the case may be, shall be several and not jointterminate.
(b) Subject to the terms and conditions hereof, each Lender severally agrees, if the Initial Loans have not been repaid or exchanged for Exchange Notes on the Initial Maturity Date, to convert the then outstanding principal amount of its Initial Loans into a loan (individually, a "Term Loan" and collectively, the "Term Loans"; the Initial Loans and the Term Loans, collectively, the "Loans") to the Company, on the Initial Maturity Date, in an aggregate principal amount equal to then outstanding principal amount of the Initial Loans held by such Lender. Upon the making by such Lender of such Term Loan, each Lender shall cancel on its records a principal amount of the Initial Loans held by such Lender corresponding to the principal amount of Term Loans made by such Lender, which corresponding principal amount of the Initial Loans shall be satisfied by the conversion thereof into Term Loans in accordance with Section 2.2(b).
(c) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower Company to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 terms of Default exists and is continuing until such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuingthis Agreement.
(iid) On The failure of any Business DayLender to make the Initial Loan to be made by it shall not relieve any other Lender of its obligation, the Swingline if any, hereunder to make its Initial Loan, but no Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing responsible for the failure of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall any other Lender to make the Initial Loan to be made on the same Business Day (provided that by such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such other Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Senior Working Capital Credit Agreement (Primacom Ag)
Loans. (a) Subject Until the Termination Date, subject to and upon the terms and conditions herein set forthof this Agreement, each Lender of the Lenders, severally and not jointly with the other Lenders, agrees to make a loan or loans (eachcollectively, a the “Revolving Credit LoanLoans”) in U.S. dollars to the Borrower, which Revolving Credit Borrower in an aggregate principal amount at any one time outstanding not to exceed such Lender’s Commitment. Loans shall be made on any Borrowing Date only (i) shall in the minimum aggregate principal amount of $2,500,000 or in integral multiples of $1,000,000 in excess thereof, in the case of SOFR Loans, and in the minimum aggregate amount of $1,000,000 or in integral multiples of $100,000, in the case of ABR Loans, and (ii) in a maximum aggregate principal amount not exceed exceeding the Revolving Credit Available Commitment of such Lender (after giving effect thereto to any repayments or prepayments and to the application any other borrowings of the proceeds thereofLoans on such Borrowing Date), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate The Borrower acknowledges and confirms that on the Restatement Effective Date, the aggregate outstanding principal amount of such Lender to make such Loan; provided the Loans is $60,000,000.00. On the Restatement Effective Date, the parties hereto hereby agree that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) Commitments shall be ABR Loans, (B) as set forth on Schedule I and the portion of Loans outstanding shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed reallocated in accordance with such Commitments set forth on Schedule I and the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans requisite assignments shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice deemed to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the Restatement Effective Date in such amounts by and between the Lenders and from each Lender to each other Lender, with the same Business Day (provided that force and effect as if such notice is given assignments were evidenced by an applicable Assignment and Acceptance. Notwithstanding anything to the Lenders by the Swingline Lender before 1:00 p.m. contrary in Section 10.03 or any other provision hereof, no other documents or instruments, including any Assignment and Acceptance, shall be executed in connection with these assignments (New York Timeall of which requirements are hereby waived), and such assignments shall be deemed to be made with all applicable representations, warranties and covenants as if evidenced by an Assignment and Acceptance. On the Restatement Effective Date, the Lenders shall make full cash settlement with each other either directly or otherwisethrough the Administrative Agent, as the Administrative Agent may direct or approve, with respect to all assignments, reallocations and other changes in Commitments such that after giving effect to such settlements, each Lender’s Pro Rata Share shall be as set forth on Schedule I. In addition, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment PercentageRestatement Effective Date, and the proceeds thereof Borrower shall be applied directly pay to the Swingline Lender to repay Administrative Agent, for the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount account of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2Lenders, (ii) whether any conditions specified in Section 7 are then satisfiedall losses, (iii) whether a Default or an Event of Default has occurred costs and is continuingexpenses, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event thatif any, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including incurred as a result of the commencement of a proceeding under the Bankruptcy Code reallocations provided for in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasethis Section.
Appears in 1 contract
Sources: Revolving Credit Agreement (Southwest Gas Holdings, Inc.)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans to the Borrower, which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in Dollars, (iv) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(b) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in U.S. Dollars, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof), result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity DateDate (provided that no Revolving Credit Loans may be borrowed on the Closing Date other than (x) Revolving Credit Loans in an amount not to exceed $20,000,000 to be used to pay for the Debt Refinancing, the Sheridan Acquisition and the Transaction Expenses and (y) Revolving Credit loans used to pay amounts attributable to any “flex” pursuant to the Fee Letter in the form of upfront fees and/or OID), (ivv) may, may at the option of the Borrower, Borrower be incurred Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts NY\6379601.11 to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(ie) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, in its discretion, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan” and, collectively the “Swingline Loans”) to the BorrowerBorrower in Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(d)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, effect and (GE) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders Administrative Agent 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 of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(iii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit LoansLoans denominated in Dollars, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one same Business Day’s Days’ notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline NY\6379601.11 Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing the same from and after such date of purchase.
(ii) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Credit Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit Lender in its capacity as a lender of Swingline Loans hereunder.
(iii) Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract
Sources: Credit Agreement (Amsurg Corp)
Loans. (a) Subject to the terms and conditions hereof, each Lender severally agrees from time to time during the Commitment Period to make revolving credit loans to one or more of the Core Currency Borrowers in the respective Applicable Currencies (each a "Revolving Loan" and, as the context may require, collectively with all other Revolving Loans of such Lender and with the Revolving Loans of all other Lenders, the "Revolving Loans"), provided, however, that immediately after giving effect thereto, (i) the Aggregate Credit Exposure shall not exceed the Aggregate Commitments, and (ii) with respect to each Lender, (I) the aggregate principal amount of all Revolving Loans then outstanding from such Lender (determined on the basis of the Dollar Equivalent for each outstanding Alternate Currency Revolving Loan), plus (II) the aggregate principal amount of all Individual Currency Loans then outstanding from such Lender (determined on the basis of the Dollar Equivalent of each such Individual Currency Loan), plus (III) the SL/LC Credit Exposure of such Lender, shall not exceed such Lender's Commitment. During the Commitment Period, the Core Currency Borrowers may borrow, prepay in whole or in part and reborrow Revolving Loans under the Aggregate Commitments, all in accordance with the terms and conditions of this Agreement.
(b) Subject to the terms and conditions hereof, Revolving Loans, (i) if to be made in Dollars (each a "Dollar Revolving Loan" and, collectively, the "Dollar Revolving Loans"), shall be made to one or more Domestic Borrowers and shall, at the option of such Domestic Borrowers, be either ABR Advances or Eurodollar Advances, (ii) if to be made in French Francs, shall be made to the French Borrower, (iii) if to be made in German Marks, shall be made to the German Borrower, (iv) if to be made in Japanese Yen, shall be made to the Japanese Borrower, and (v) if to be made in Sterling Pounds, shall be made to the Sterling Borrower. The Revolving Loans, together with all accrued and unpaid interest thereon, shall mature and be due and payable in the Applicable Currency on the Maturity Date.
(c) Subject to and upon the terms and conditions herein set forthforth herein, each the Swing Line Lender severally in its individual capacity agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after during the Closing Date and prior Swing Line Commitment Period, a loan or loans (each a "Swing Line Loan" and, collectively, the "Swing Line Loans") to one or more of the Revolving Credit Maturity DateSwing Line Borrowers, which Swing Line Loans (ivi) mayshall, at the option of the applicable Swing Line Borrower, be incurred made and maintained as, and/or converted into, ABR as Dollar Swing Line Loans or Eurodollar Loans; provided that all Revolving Credit Alternate Currency Swing Line Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.an Available Alte▇▇▇▇▇
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(iid) On any Business Day, the Swingline Swing Line Lender may, in its sole discretion, give notice to the Lenders, with a copy to Lenders and the Borrower, Parent (on behalf of all Swing Line Borrowers) that all then-its outstanding Swingline Swing Line Loans shall be funded with a Borrowing borrowing of Revolving Credit LoansLoans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(g) or (h)), in which case one or more borrowings of Revolving Credit Loans constituting ABR Advances (or constituting one or more Eurodollar Advances specified by the Parent in accordance with Section 2.3(a)) or Alternate Currency Revolving Loans with a one month Euro Interest Period (or such other Euro Interest Period(s) specified - 38 - 45 by the Parent in accordance with Section 2.3(a)) in the Applicable Currency, as the case may be (each such Borrowing, borrowing a “"Mandatory Borrowing”) "), shall be made on the same fifth Business Day (provided that immediately succeeding such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s 's Availability Percentage immediately prior thereto but after giving effect to any prepayment of Revolving Credit Commitment PercentageLoans, Individual Currency Loans, or Swing Line Loans, or any payment of reimbursement obligations in respect of the Letters of Credit, to be made simultaneously therewith, and the proceeds thereof shall be applied directly to the Swingline Swing Line Lender to repay the Swingline Swing Line Lender for such outstanding Swingline Swing Line Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice in Dollars or the Applicable Currency, as the case may be, pursuant to each Mandatory Borrowing in respect of any Swing Line Loan in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Swing Line Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2Loans otherwise required hereunder, (ii) whether any conditions specified in Section 7 Sections 5 and 6 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuingthen exists, (iv) the date of such Mandatory Borrowing or Borrowing, (v) any reduction in the Total Commitment after any aggregate principal amount of all Loans then outstanding (determined on the basis of the Dollar Equivalent of each outstanding Alternate Currency Loan), (vi) the Aggregate Credit Exposure at such Swingline Loans were madetime and (vii) the amount of the Aggregate Commitments at such time, provided that no Non-Swing Loan Event shall have occurred and be continuing with respect to such Swing Line Loan. In the event that, in the sole judgment of the Swingline Lender, that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a any proceeding under the Bankruptcy Code referred to in respect of the BorrowerSections 9.1(g) or (h), ) then each Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Swingline Parent or the applicable Swing Line Borrower on or after such date and prior to such purchase) from the Swing Line Lender (without recourse or warranty) such participation of the assignments in each outstanding Swingline Loans Swing Line Loan as shall be necessary to cause each such Lender the Lenders to share in each such Swingline Loans Swing Line Loan ratably based upon their respective Revolving Credit Commitment Percentages; Availability Percentages at such time, provided that no Non-Swing Loan Event shall have occurred and be continuing with respect to such Swing Line Loan, and provided further that all principal and interest payable on each such Swingline Loans Swing Line Loan shall be for the account of the Swingline Swing Line Lender until the date as of which the respective participation assignment therein is purchased and, to the extent attributable to the purchased participationassignment, shall be payable to the relevant Lender purchasing same from and after such date date. Each Lender agrees promptly to indemnify the Swing Line Lender for any costs or expenses the Swing Line Lender may incur as a result of purchasethe failure of such Lender to fulfill its obligations under this Section 2.1(d).
(e) Subject to the terms and conditions hereof, each Lender in its individual capacity agrees to make at any time and from time to time during the Commitment Period a loan or loans under one or more of its Individual Currency Commitments (each an "Individual Currency Loan" and, as the context may require, collectively with all other Individual Currency Loans of such Lender and, as the context may require, with the Individual Currency Loans of all other Lenders, the "Individual Currency Loans") to one or more of the applicable Non-Core Currency Borrowers in the respective Applicable Currencies, provided, however, that immediately after giving effect thereto:
(i) the Aggregate Credit Exposure shall not exceed the Aggregate Commitments,
(ii) the Aggregate Credit Exposure attributable to all Loans and Letters of Credit designated in Non-Core Currencies shall not exceed $60,000,000,
(iii) with respect to any Applicable Currency, (x) the aggregate principal amount of the Individual Currency Loans of such Lender designated in such Applicable Currency shall not exceed such Lender's Individual Currency Commitment for such Applicable Currency and (y) the sum of the aggregate principal amount of the Individual Currency Loans of all Lenders in such Applicable Currency and the Letter of Credit Exposure attributable to all Letters of Credit issued in such Applicable Currency (determined on the basis of the Dollar Equivalent of each such Individual Currency Loan and each such Letter of Credit) shall not exceed $5,000,000, and
(iv) with respect to each Lender (x) the aggregate principal amount of all Individual Currency Loans then outstanding from such Lender (determined on the basis of the Dollar Equivalent of each such Individual Currency Loan), plus (y) the aggregate principal amount of all Revolving Loans then outstanding from such Lender (determined on the basis of the Dollar Equivalent for each outstanding Alternate Currency Revolving Loan), plus (z) the SL/LC Credit Exposure of such Lender, shall not exceed such Lender's Commitment. During the Commitment Period, the Non-Core Currency Borrowers may borrow, prepay in whole or in part and reborrow Individual Currency Loans under the Aggregate Individual Currency Commitments, all in accordance with the terms and conditions of this Agreement.
(f) Subject to the terms and conditions hereof, Individual Currency Loans, (i) if to be made in Australian Dollars, shall be made to the Australian Borrower, (ii) if to be made in Canadian Dollars, shall be made to the Canadian Borrower, (iii) if to be made in Hong Kong Dollars, shall be made to the Hong Kong Borrower, (iv) if to be made in Italian Lira, shall be made to the Italian Borrower, (v) if to be made in Korean Won, shall be made to the Korean Borrower, (vi) if to be made in Malaysian Ringgit, shall be made to the Malaysian Borrower, (vii) if to be made in Mexican Pesos, shall be made to the Mexican Borrower, (viii) if to be made in Philippine Pesos, shall be made to the Philippine Borrower, (ix) if to be made in Singaporean Dollars, shall be made to the Singaporean Borrower, (x) if to be made in Swiss Francs, shall be made to the Swiss Borrower, (xi) if to be made in New Taiwan Dollars, shall be made to the Taiwanese Borrower, and (xii) if to be made in Thai Baht, shall be made to the Thai Borrower. Each Individual Currency Loan shall be due and payable on the earlier of (x) the last day of the Individual Currency Interest Period applicable thereto and (y) the Maturity Date.
Appears in 1 contract
Sources: Credit Agreement (Tiffany & Co)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower (or Co-Obligors), which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in Dollars, (iv) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Eurocurrency Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(b) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower (or Co-Obligors) in Dollars or any Alternative Currency, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof), result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (ivv)(i) mayin the case of Revolving Credit Loans denominated in Dollars, may at the option of the Borrower, applicable Borrower be incurred Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Eurocurrency Loans and (ii) in the case of Revolving Credit Loans denominated in an Alternative Currency, shall be Incurred and maintained as Eurocurrency Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Credit Agreement (MultiPlan Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement (including, without limitation, Section 2.12(a)), each Lender severally agrees to make a loan one or more loans (each, a “Revolving Credit Loan”) to the Borrower, which Borrower from time to time from and including the Closing Date to but excluding the Revolving Credit Loans Period Termination Date up to but not exceeding the positive remainder of (i) the amount of such Lender's Commitment as then in effect, minus (ii) such Lender's Commitment Percentage of the Letter of Credit Liabilities then outstanding, minus (iii) such Lender's Commitment Percentage of the Swingline Advances then outstanding. (Such loans referred to in this Section 2.1(a) now or hereafter made by the Lenders to the Borrower from and including and after the Closing Date are hereinafter collectively called the "Loans".) Subject to the foregoing limitations and the other terms and conditions of this Agreement, the Borrower may borrow, repay and reborrow the Loans hereunder during (but not after) the Revolving Period. Notwithstanding anything to the contrary contained in this Agreement, the Borrower may from time to time request, and NationsBank may at its discretion from time to time advance (but shall in no event be obligated to advance), Loans which are to be funded solely by NationsBank (the "Swingline Advances"); provided, however, that (i) the aggregate principal amount of the Swingline Advances outstanding at any time shall not exceed $5,000,000 and the aggregate principal amount of the Loans outstanding at any time (inclusive of the Swingline Advances) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application aggregate principal amount of the proceeds thereof)Commitments, (ii) all Swingline Advances shall not, after giving effect thereto be and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, shall remain as ABR Loans and (iii) NationsBank shall be made give the Agent and each Lender written notice of the aggregate outstanding principal amount of the Swingline Advances upon the written request of the Agent or any Lender (but no more often than once every calendar quarter). Furthermore, upon one Business Day's prior written notice given by NationsBank to the Agent and the other Lenders at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date(including, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agreeswithout limitation, at any time and from time to time on and after following the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit occurrence of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 Default), each Lender (including, without limitation, NationsBank) severally agrees, as provided in the first sentence of this Section 2.1(a), and is continuing until such time as notwithstanding anything to the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such contrary contained in this Agreement, any Default or Event of Default or the inability or failure of the Borrower or any of its Subsidiaries or any other Loan Party to satisfy any condition precedent to funding any of the Loans contained in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
Article 6 (ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice which conditions precedent shall not apply to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Timethis sentence), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event thatLoan, in the sole judgment form of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.an ABR Loan,
Appears in 1 contract
Sources: Credit Agreement (Dynamex Inc)
Loans. (a) Subject to and upon the terms and conditions and relying upon the representations, warranties and covenants herein set forth, each Lender severally agrees commits to make a loan or loans (each, a “Revolving Credit "Loan”") to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and Borrower from time to time during the period commencing on and after the Closing Effective Date and prior ending on the Maturity Date in an aggregate principal amount equal to the Revolving Credit Maturity Dateamount set forth beside such Lender's name in Schedule A under the heading "Commitment", (iv) mayas adjusted pursuant to the terms of this Agreement, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit any Loans made by each of any Lender as requested by the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed Borrower will not result in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay Lender's aggregate Loans, Swap Exposure and LC Exposure hereunder exceeding such Loan and Lender's Commitment, or (ii) in exercising such optionthe aggregate Loans, such Lender shall use its reasonable efforts Swap Exposure and LC Exposure outstanding hereunder exceeding the aggregate Commitments of all Lenders. Within the foregoing limits and subject to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forthforth herein, the Swingline Lender in its individual capacity agreesBorrower may borrow, at any time repay and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR reborrow Loans, by way of Cdn.$ Loans and/or U.S.$ Loans. Subject to Section 2.7(h) and Section 2.8, Cdn.$ Loans shall consist entirely of Prime Rate Loans and B/As (or, as applicable, B) shall have the benefit of the provisions of Section 2.1(c)(ii/A Equivalent Loans), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline U.S.$ Loans shall be repaid in full. 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 consist entirely of Default exists Base Rate Loans and is continuing until such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Eurodollar Loans, in which each case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on as the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline LoansBorrower may request in accordance herewith. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount Without limiting any of the Mandatory Borrowing may not comply with foregoing, the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred Borrower hereby acknowledges and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code agrees that its liability in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause absolute and unconditional. At the commencement of each Contract Period for any B/A (or, as applicable, any B/A Equivalent Loan) or Interest Period for any Eurodollar Loan, such Lender to share Loan shall be in an aggregate amount that is an integral multiple of $500,000 (the "Minimum Denomination") and not less than $5,000,000, in each case measured in the currency of such Swingline Loan. Cdn.$ Loans ratably based upon their respective Revolving Credit Commitment Percentagesand U.S.$ Loans of more than one Type may be outstanding at the same time; provided that all principal there shall not at any time be more than a total of 5 B/A Borrowings or 5 Eurodollar Borrowings outstanding. The Lenders acknowledge that the Loans and interest payable on such Swingline Loans shall be for the account Liens granted as security therefor are subject to the terms of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseLien Priority Agreement.
Appears in 1 contract
Sources: Tranche a Exit Facility Agreement (Microcell Telecommunications Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each ----- from the Closing Date and until the Commitment Termination Date (i) Lender severally agrees (A) to make a loan or loans available advances (each, a “"Revolving Credit Loan”Advance") and (B) to incur Letter of Credit Obligations, in an aggregate outstanding amount for any Borrower not to exceed the Borrowing Availability of such Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to any Borrower may at the application request of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at Leading Borrower as agent for such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and Borrower from time to time on borrow, repay and after the Closing Date reborrow, and prior may cause Lender to the Revolving incur Letter of Credit Maturity DateObligations, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointunder this Section 1.1.
(b) Each Leading Borrower, as agent for each Borrower, shall request each Revolving Credit Advance by written notice to Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate substantially in the form of such Exhibit A (each a "Notice of Revolving Credit Advance") given no later than --------- 12:00 noon (New York City time) on the Business Day of the proposed Revolving Credit Advance. Lender shall be fully protected under this Agreement in relying upon, and shall be entitled to make such Loan; provided that rely upon, (i) any exercise Notice of such option shall not affect the obligation of the Borrower Revolving Credit Advance believed by Lender to repay such Loan be genuine, and (ii) in exercising such optionthe assumption that the Persons making electronic requests or executing and delivering a Notice of Revolving Credit Advance were duly authorized, such unless the responsible individual acting thereon for Lender shall use its reasonable efforts to minimize any increased costs have actual knowledge to the contrary. As an accommodation to Borrowers, Lender may permit telephonic or facsimile requests for a Revolving Credit Advance and electronic or facsimile transmittal of instructions, authorizations, agreements or reports to Lender by any Borrower. Unless each Borrower resulting therefrom (which obligation specifically directs Lender in writing not to accept or act upon telephonic, facsimile or electronic communications from any Borrower, Lender shall have no liability to any Borrower for any loss or damage suffered by any Borrower as a result of Lender's honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically and purporting to have been sent to Lender by any Borrower and Lender shall have no duty to verify the origin of any such communication or the identity or authority of the Person sending it. The Revolving Credit Loan shall be evidenced by, and be repayable in accordance with the terms of, the Revolving Credit Note and this Agreement.
(c) In making any Loan hereunder Lender, shall be entitled to rely upon the most recent Borrowing Base Certificate delivered to Lender by such Borrower and other information available to Lender. Lender shall not require it be under no obligation to take, make any further Revolving Credit Advance to any Borrower or refrain from taking, actions that it determines would result incur any other Obligation if any Borrower shall have failed to deliver a Borrowing Base Certificate to Lender by the time specified in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply4.1(b).
(id) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior Notwithstanding anything to the Swingline Maturity Datecontrary contained in this Agreement, to make a loan or loans (eachincluding Schedule C, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 no obligations to incur Letter of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be ---------- Obligations for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseBorrower.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each from the ----- Closing Date and until the Commitment Termination Date (i) Lender severally agrees (A) to make a loan or loans available advances (each, a “"Revolving Credit Loan”Advance") and (B) to the Borrowerincur Letter of Credit Obligations, which Revolving Credit Loans (i) shall in an aggregate outstanding amount not to exceed the Revolving Credit Commitment of such Lender (after giving effect thereto Borrowing Availability, and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, Borrower may at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and its request from time to time on borrow, repay and after the Closing Date reborrow, and prior may cause Lender to the Revolving incur Letter of Credit Maturity DateObligations, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointunder this Section 1.1.
(b) Each Borrower shall request each Revolving Credit Advance by written notice to Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate substantially in the form of such Exhibit A (each a "Notice of ---------- Revolving Credit Advance") given no later than 11:00 A.M. (New York City time) on-the Business Day of the proposed advance. Lender shall be fully protected under this Agreement in relying upon, and shall be entitled to make such Loan; provided that rely upon, (i) any exercise Notice of such option shall not affect the obligation of the Borrower Revolving Credit Advance believed by Lender to repay such Loan be genuine, and (ii) in exercising such optionthe assumption that the Persons making electronic requests or executing and delivering a Notice of Revolving Credit Advance were duly authorized, such unless the responsible individual acting thereon for Lender shall use its reasonable efforts to minimize any increased costs have actual knowledge to the contrary. As an accommodation to Borrower, Lender may permit telephonic, electronic or facsimile requests for a Revolving Credit Advance and electronic or facsimile transmittal of instructions, authorizations, agreements or reports to Lender by Borrower. Unless Borrower resulting therefrom (which obligation specifically directs Lender in writing not to accept or act upon telephonic, facsimile or electronic communications from Borrower, Lender shall have no liability to Borrower for any loss or damage suffered by Borrower as a result of Lender's honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically and purporting to have been sent to Lender by Borrower and Lender shall have no duty to verify the origin of any such communication or the identity or authority of the Person sending it. The Revolving Credit Loan shall be evidenced by, and be repayable in accordance with the terms of, the Revolving Credit Note and this Agreement.
(c) In making any Loan hereunder Lender shall not require it be entitled to take, rely upon the most recent Borrowing Base Certificate delivered to Lender by Borrower and other information available to Lender. Lender shall be under no obligation to make any further Revolving Credit Advance or refrain from taking, actions that it determines would result incur any other Obligation if Borrower shall have failed to deliver a Borrowing Base Certificate to Lender by the time specified in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply4.1(b).
(id) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior Letters of Credit Notwithstanding anything to the Swingline Maturity Datecontrary contained in this Agreement, to make a loan or loans (eachincluding Schedule C, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 no obligations to ---------- incur Letter of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be Obligations for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseBorrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Salix Pharmaceuticals LTD)
Loans. The Borrower may borrow amounts under this Agreement in any amount requested by the Borrower (a) Subject to and upon the terms and conditions herein set forth, each Lender severally agrees to make a loan or loans (eachsuch borrowing, a “Revolving Credit Loan”; together with each other Loan, the “Loans”) to during the BorrowerAvailability Period; provided, which Revolving Credit Loans that (i) the aggregate principal amount of all Loans made hereunder plus the aggregate principal amount of all loans made under the Lender Claim Trust Loan Agreement shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof)Maximum Loan Amount at any time, (ii) the proceeds of all Loans shall notbe used solely in furtherance of the Trust Purpose (including, but not limited to, for the avoidance of doubt, to fund and/or reimburse any of the fees, costs and expenses of the professionals retained by the Borrower in connection therewith), (iii) no borrowing request hereunder shall request Loans in an amount that would exceed the Available Amount at such time and (iv) if, after giving effect thereto and to the application making of a Loan, the aggregate principal amount of Loans made under this Agreement (including such Loan requested) plus the aggregate principal amount of all loans made under the Lender Claim Trust Loan Agreement, in each case, as of the proceeds thereofdate of such Loan, at any time result in the Total Revolving Credit Outstandings at such time would exceed the Maximum Amount Loan Amount, then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing requested Loan shall be automatically reduced to the Available Amount at such time (for the avoidance of doubt, no Loans may be requested or funded until $13,000,000 has been contributed to the Trusts by the Lender pursuant to Article V.F and Article V.G of the Plan (“Non Loan Contribution”) and the entire amount of the Non Loan Contribution has been used by the Trusts in furtherance of the Trust Purpose and/or the trust purpose under the Lender Claim Trust Agreement, as applicable). Loans borrowed hereunder and prepaid or repaid may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were madebe reborrowed. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.1930345.02-NYCSR07A - MSW
Appears in 1 contract
Sources: Loan Agreement
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each Lender severally agrees to make a loan or loans available advances (each, a “Revolving Credit "Loan”") to or for the benefit of Borrower in an aggregate amount not to exceed the face amount of a particular Purchase Order, as and when each Purchase Order is issued by Sun to Borrower, which Revolving Credit Loans and (ib) shall not exceed such other financial accommodations as Lender may elect to provide to or for the Revolving Credit Commitment benefit of such Lender Borrower (after giving effect thereto and "Financial Accommodations"). Notwithstanding anything to the application contrary contained in this Agreement or any other Loan Document, except for the Initial Loan in the amount of $4,535,000 (the proceeds thereof"Initial Loan"), (ii) as hereinafter provided, Lender's obligation to make any Loan or to provide any other form of Financial Accommodation to or for the benefit of Borrower is discretionary and shall notbe advanced or not be advanced, after giving effect thereto or shall be provided or not be provided, as Lender, in its sole and to the application of the proceeds thereofabsolute discretion, at any time result shall determine. Each Loan shall be evidenced by a Note in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effectform of Exhibit A attached hereto, (iii) and shall be made at any time repayable as provided in this Agreement. No Loan shall be deemed to constitute a revolving credit facility and following repayment of a particular Loan, may not be reborrowed from time Lender. In addition, the initial Note executed by Borrower shall evidence an additional advance by Lender for the attorneys' fees and expenses incurred by Lender in documenting the transactions evidenced hereby. Within ten (10) days after receiving an invoice for legal fees and expenses from Lender's counsel, Sedgwick, Detert, ▇▇▇▇▇ & ▇▇▇▇▇▇, Borrower agrees to time on directly pay Lender's counsel in the event that the legal fees and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be expenses incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed Lender exceed $35,000 in accordance connection with the provisions hereof. On execution and delivery of this Agreement, the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several Loan Documents and not jointthe related transactions contemplated hereunder.
(b) Each If, in connection with a particular Purchase Order, Borrower desires to receive a Loan (other than the Initial Loan), it shall give Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that written notice given no later than twenty (i20) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and Business Days prior to the Swingline Maturity Date, date such Loan is to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) be made. Each Loan shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effectevidenced by, and (G) may be repaid and reborrowed repayable in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowingterms of, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, separate Note and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchasethis Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Dot Hill Systems Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Initial Tranche A Term Lender severally agrees to make a loan or loans (each, a an “Revolving Credit Initial Tranche A Term Loan”) to the Borrower, which Revolving Credit Initial Tranche A Term Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Initial Tranche A Term Loan Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof)Initial Tranche A Term Lender, (ii) shall notnot exceed, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate, the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effectInitial Tranche A Term Loan Commitment, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Dateshall be denominated in U.S. Dollars, (iv) may, may at the option of the Borrower, Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit such Initial Tranche A Term Loans made by each of the Initial Tranche A Term Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Initial Tranche A Term Loans of the same Type and (v) may be repaid and reborrowed or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Revolving Credit Initial Tranche A Term Loan Maturity Date, all outstanding Revolving Credit Initial Tranche A Term Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline each Initial Tranche B Term Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, severally agrees to make a loan or loans (each, a an “Swingline Initial Tranche B Term Loan”) to the Borrower, which Swingline Initial Tranche B Term Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (Di) shall not exceed, for any such Lender, the Revolving Credit Initial Tranche B Term Loan Commitment of such Initial Tranche B Term Lender, (Eii) shall notnot exceed, after giving effect thereto in the aggregate, the Total Initial Tranche B Term Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in U.S. Dollars, (iv) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all such Initial Tranche B Term Loans made by each of the Initial Tranche B Term Lenders pursuant to the application same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Tranche B Term Loans of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, same Type and (Gv) may be repaid and reborrowed or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Swingline Initial Tranche B Term Loan Maturity Date, all outstanding Swingline Initial Tranche B Term Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Incremental Tranche B Term Loans (LPL Financial Holdings Inc.)
Loans. (a) Subject to and upon the terms and conditions herein set forthforth herein, each Revolving Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the lesser of (x) the amount of such Revolving Lender’s Revolving Commitment, or (y) such Lender’s Revolving Credit Facility Applicable Percentage of the Revolving Loan Cap; subject in each case to the following limitations:
(i) after giving effect to any Revolving Borrowing, the Total Revolving Outstandings shall not exceed the Revolving Loan Cap, and
(ii) after giving effect to any Revolving Borrowing, the aggregate Outstanding Amount of the Revolving Loans of any Revolving Lender, plus such Revolving Lender’s Revolving Credit Facility Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Commitment. Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(a), prepay under Section 2.04, and reborrow under this Section 2.01(a).
(b) Subject to the terms and conditions set forth herein, each Tranche A Term Lender severally agrees to make a loan or loans (eachcollectively, a the “Revolving Credit Tranche A Term Loan”) to the Borrower on the Third Restatement Date in an aggregate principal amount equal to such Tranche A Term Lender’s Tranche A Term Loan Commitment in immediately available funds in accordance with instructions provided by the Borrower, which Revolving Credit Loans (i) . The aggregate amount of the Tranche A Term Loan shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointaggregate Tranche A Term Loan Commitments.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: First Lien Credit Agreement (Sequential Brands Group, Inc.)
Loans. (a) Subject Each Lender severally agrees, on and subject to and upon the terms and conditions herein set forthof this Agreement, each Lender severally agrees to make a loan or loans in Dollars to the Borrower requesting a Loan in the Notice of Borrowing (each, a “Revolving Credit Loan”) ), as described in Section 2.2 through an Applicable Lending Office, on the Borrowing Date in an aggregate principal amount not to exceed, for each Lender, the amount set forth opposite such Lender’s name under the heading “Commitment” on Annex I hereto (such amount, such Lender’s “Commitment”); provided that after giving effect to the Borrowerborrowing of the Loans, which Revolving Credit the outstanding principal amount of all Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointUS$40,000,000.
(b) Each Lender Amounts borrowed as Loans which are repaid or prepaid may at its option make not be reborrowed and any Eurodollar Loan by causing any domestic or foreign branch or Affiliate available amounts not requested to be borrowed under this Section 2.1 shall result in the pro rata irrevocable termination of such Lender to make such Loan; provided that an equivalent amount of the Commitments on the day on which the Administrative Agent receives the Notice of Borrowing therefor. The Commitments shall expire concurrently on the earlier of (i) any exercise of such option shall not affect the obligation of date that is five (5) days after the Borrower to repay such Loan Closing Date (the “Availability Expiration Date”) and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply)Borrowing Date.
(ic) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit The proceeds of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from used by 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice solely to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2pay fees and expenses due and payable under Sections 2.3 and 11.3, (ii) whether any conditions specified in Section 7 are then satisfiedfund the Debt Service Reserve Account, (iii) whether a Default or an Event reimburse Affiliates of Default has occurred the Loan Parties for amounts paid by them on account of the purchase price under the Turbine Purchase Agreement, and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment finance Capital Expenditure needs of the Swingline LenderLoan Parties ((i) (ii) (iii) and (iv) collectively, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower“Permitted Uses”), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Loans. (ai) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower, which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in Dollars, (iv) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or, Eurocurrency Loans or Term SOFR Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(ii) Subject to and upon the terms and conditions set forth in the 2022 Incremental Agreement, each Lender having a 2022 Incremental Term Loan Commitment severally agrees to make 2022 Incremental Term Loans to the Borrower, which 2022 Incremental Term Loans (A) shall not exceed, for any such Lender, the 2022 Incremental Term Loan Commitment of such Lender, (B) shall not exceed, in the aggregate, the Total 2022 Incremental Term Loan Commitment, (C) shall be made on the 2022 Incremental Agreement Effective -107- #96562806v11
(i) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in Dollars or any Alternative Currency, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof), result in such ▇▇▇▇▇▇’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (ivv)
(i) mayin the case of Revolving Credit Loans denominated in Dollars, may at the option of the Borrower, applicable Borrower be incurred Incurred and maintained as, and/or converted into, ABR Loans or, Eurocurrency Loans or Eurodollar Term SOFR Loans and (ii) in the case of Revolving Credit Loans denominated in an Alternative Currency, shall be Incurred and maintained as Eurocurrency Loans or Term SOFR Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. .
(ii) On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Fixed Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Fixed Rate Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Fixed Rate Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the BorrowerBorrower in Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(d)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, and (GE) may be repaid and reborrowed in accordance with the provisions hereofhereof and (F) shall mature no later than the date ten Business Days after such Swingline Loan is made. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from either the Borrower or the Required Lenders Administrative Agent 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 of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of -108- #96562806v11
(iii) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more applicable Revolving Credit Loans, Lenders that agree to serve in which case such capacity as provided below. The acceptance by a Revolving Credit Loans constituting ABR Loans (each such Borrowing, Lender of an appointment as a “Mandatory Borrowing”) Swingline Lender hereunder shall be made on the same Business Day (provided that such notice is given evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Lenders Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender before 1:00 p.m. Lender, and, from and after the effective date of such agreement, (New York Time), or otherwise, on the next Business Dayi) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in Lender shall have all the amount rights and in the manner specified in the preceding sentence and on the date specified to it in writing by the obligations of a Swingline Lender notwithstanding under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit Lender in its capacity as a lender of Swingline Loans hereunder.
(iv) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) that the amount Swingline Lender’s acknowledging receipt of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, such notice and (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the fifth Business Day following the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentagesdelivery thereof; provided that all principal no such termination shall become effective until and interest payable on unless the Swingline Exposure of such Swingline Loans Lender shall be for have been reduced to zero. Notwithstanding the account effectiveness of any such termination, the terminated Swingline Lender until shall remain a party hereto and shall continue to have all the date the respective participation is purchased andrights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, to the extent attributable to the purchased participation, but shall be payable to the Lender purchasing same from and after such date of purchasenot make any additional Swingline Loans.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower, which Initial Term Loans (i) shall, for any such Lender, be in a principal amount equal to the Initial Term Loan Commitment of such Lender, (ii) shall, for all Lenders, be in a principal amount in the aggregate equal to the Total Initial Term Loan Commitment, (iii) shall be made on the Closing Date, (iv) shall be denominated in Dollars, (v) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, Base Rate Loans or Term SOFR Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (vi) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(i) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in U.S. Dollars, which Revolving Credit Loans (iA) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (B) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof), result in such ▇▇▇▇▇▇’s Revolving Credit Exposure at such time exceeding such ▇▇▇▇▇▇’s Revolving Credit Commitment at such time, (iiC) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiD) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (ivE) may, may at the option of the Borrower, Borrower be incurred Incurred and maintained as, and/or converted into, ABR Base Rate Loans or Eurodollar Term SOFR Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vF) may be repaid and reborrowed in accordance with the provisions hereof. .
(i) On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Term SOFR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Term SOFR Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Term SOFR Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the BorrowerBorrower in U.S. Dollars, which Swingline Loans (A) shall be ABR Base Rate Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(d)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, and (GE) may be repaid and reborrowed in accordance with the provisions hereofhereof and (F) shall mature no later than the date ten Business Days after such Swingline Loan is made. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Borrower shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from either the Borrower or the Required Lenders Administrative Agent 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 of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing. Immediately upon the making of a Swingline Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Credit ▇▇▇▇▇▇’s Revolving Credit Commitment Percentage times the amount of such Swingline Loan.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Base Rate Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made by no later than 1:00 p.m. on the same Business Day in immediately available funds (provided that such notice is given and the Administrative Agent may apply Cash Collateral available with respect to the Lenders by the applicable Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business DayLoan) by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one same Business Day’s Days’ notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code any Debtor Relief Law in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the request for a Mandatory Borrowing submitted by the Swingline Lender (without recourse or warranty) such participation as set forth herein shall be deemed to be a request by the Swingline Lender that each of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal Lenders fund its risk participation in the relevant Swingline Loan and interest payable on such Swingline Loans shall be each Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swingline Lender until pursuant to this Section 2.1(d)(ii) shall be deemed payment in respect of such participation. If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.1(d)(ii) by the time specified herein, the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date the respective participation such payment is purchased and, required to the extent attributable date on which such payment is immediately available to the purchased participationSwingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Mandatory Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (d)(ii) shall be payable conclusive absent manifest error.
(iii) Each Revolving Credit ▇▇▇▇▇▇’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.1(d) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.1(d) is subject to the conditions set forth in Section 7 (other than delivery by the Borrower of a Notice of Borrowing). No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(iv) At any time after any Revolving Credit Lender purchasing has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Credit Lender its Revolving Credit Commitment Percentage thereof in the same funds as those received by the Swingline Lender.
(v) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 13.20 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), each Revolving Credit Lender shall pay to the Swingline Lender its Revolving Credit Commitment Percentage thereof on demand of the Administrative Agent, plus interest thereon from and after such the date of purchasesuch demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(vi) The Swingline Lender shall be responsible for invoicing the Borrower for interest on the Swingline Loans. Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.1(d) to refinance such Revolving Credit Lender's Revolving Credit Commitment Percentage of any Swingline Loan, interest in respect of such Revolving Credit Commitment Percentage shall be solely for the account of the Swingline Lender.
(vii) The Borrower shall make all payments of principal and interest in respect of the Swingline Loans directly to the Swingline Lender.
(viii) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) the Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract
Loans. (a) Subject to and upon On the terms and subject to the conditions herein set forthforth in this Agreement, (i) each Revolving Lender severally with a Class A-1 Revolving Commitment hereby agrees to make a loan advances to or loans on behalf of the Borrower (eachindividually, a “Class A-1 Revolving Credit Loan” and collectively the “Class A-1 Revolving Loans”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), and; (ii) shall not, after giving effect thereto and each Revolving Lender with a Class A-2 Revolving Commitment hereby agrees to the application make advances to or on behalf of the proceeds thereofBorrower (individually, at any time result in a “Class A-2 Revolving Loan” and collectively the Total “Class A-2 Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, Loans”); and (iii) shall be made at any time the Swingline Lender hereby agrees to make Swingline Loans to or on behalf of the Borrower (individually, a “Swingline Loan” and collectively the “Swingline Loans”), in each case, from time to time on and after any Business Day (each such date on which a Loan is made, an “Loan Date”) during the Closing period from the Effective Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option end of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar LoansRevolving Period; provided that all Revolving Credit Loans made there shall be no more than two (2) Loan Dates (unless otherwise consented to by the Agent and each affected Lender) during any calendar week (for the avoidance of doubt, a Swingline Refund Date is not in and of itself a Loan Date); provided further that pursuant to Section 2.2(e) the Borrower shall be deemed to request that the Lenders make advances to the Unfunded Exposure Account on the last day of the Revolving Period to reduce the Exposure Amount Shortfall to zero; provided further that the Class A-1 Revolving Loans and Class A-2 Revolving Loans shall be made on a pro rata basis. The Multicurrency Loans shall be made solely by the Multicurrency Lenders pursuant to and the same Borrowing shallDollar Loans shall be made solely by the Dollar Lenders and the Multicurrency Lenders, unless otherwise specifically provided hereinas applicable, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in each case in accordance with the provisions hereofSection 2.2(d). On the Revolving Credit Maturity Date, all outstanding Revolving Credit Swingline Loans shall will only be repaid funded in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply)Dollars.
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Each Term Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, with a Class A-1 Term Commitment hereby agrees to make a loan advances to or loans on behalf of the Borrower (eachindividually, a “Swingline Class A-1 Term Loan” and collectively the “Class A-1 Term Loans”) on the related Funding Date, and (ii) each Term Lender with a Class A-2 Term Commitment hereby agrees to make advances to the BorrowerBorrower (individually, which Swingline a “Class A-2 Term Loan” and collectively the “Class A-2 Term Loans”) on the related Funding Date (1)(x) pursuant to an Assignment Agreement or (y) upon a request by the Borrower pursuant to Section 2.2(a) or (2) on any Conversion Date during the period from the Effective Date until the Term Commitment Termination Date, in each case, in an aggregate principal amount at any one time outstanding up to but not exceeding (i) such Term Lender’s Term Commitment and (ii) as to all Term Lenders, the Total Term Commitment at such time; provided that the Class A-1 Term Loans (A) and Class A-2 Term Loans shall be ABR Loansmade on a pro rata basis. The Multicurrency Loans shall be made solely by the Multicurrency Lenders and the Dollar Loans shall be made solely by the Dollar Lenders and the Multicurrency Lenders, as applicable, in each case in accordance with Section 2.2(d).
(Bc) Under no circumstances shall have the benefit of the provisions of Section 2.1(c)(ii)any Lender make a Revolving Loan, (C) shall not exceed at any time outstanding the a Term Loan or a Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall notLoan if, after giving effect thereto to such Loan and to the application any purchase of the proceeds thereofEligible Collateral Obligations in connection therewith, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (Gi) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a an Unmatured Event of Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2would exist, (ii) whether any conditions specified in Section 7 are then satisfiedif immediately after giving effect thereto, a Borrowing Base Deficiency would exist, (iii) whether a Default or an Event of Default has occurred and is continuingthe Outstanding Loan Amount would exceed the Facility Amount, (iv) the date of Foreign Currency Loan Amount would exceed the Foreign Currency Sublimit on such Mandatory Borrowing day or (v) any reduction in the Total Commitment after any such Swingline Loans were madea violation of Applicable Law would occur. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, Subject to the extent attributable terms of this Agreement, during the Revolving Period, the Borrower may borrow, reborrow, repay and prepay (subject to the purchased participation, shall be payable to the Lender purchasing same from and after such date provisions of purchaseSection 2.4) one or more Revolving Loans.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Ares Strategic Income Fund)
Loans. (a) Subject to and upon the terms and conditions herein set forthforth herein, each Lender severally agrees to make a loan or term loans (eacheach such loan, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall Borrower in an aggregate amount not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment amount of such Lender’s Commitment; provided however, that, (Ea) each Loan shall notbe made with respect to a single Financed Property identified in the Loan Notice for such Loan, after giving effect thereto and (b) each Loan shall be made only on a Business Day during the Availability Period (i) at the time the respective Financed Property initially enters the Property Pool (including pursuant to a Collateral Substitution) or (ii) with respect to a Financed Property already in the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed Property Pool in accordance with the provisions hereof. On terms hereof and subject to the Swingline Maturity Dateterms set forth in the definition of “Maximum Loan to Value Ratio Amount”, all outstanding Swingline on or after the date of completion of Post-Construction with respect to such property, (c) the aggregate amount of Loans advanced with respect to any Financed Property shall be repaid in full. The Swingline Lender no greater than the Maximum Loan to Value Ratio Amount for such property, (d) after giving effect to any Borrowing, (i) the Total Outstandings shall not make exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Loans of any Swingline Lender, shall not exceed such Lender’s Commitment and (e) if the respective Financed Property is owned by a Subsidiary Lessor, the Loan after receiving a written notice from associated with such Financed Property shall be made to the Borrower or and simultaneously contributed to such Lessor Subsidiary, and the Required Lenders stating that a Default or an Event of Default exists Borrower and is continuing until the Lessor Subsidiary shall direct the Administrative Agent to disburse such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default Loan in accordance with Section 2.02(b). Within the provisions limits of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Dayeach Lender’s Commitment, and subject to the other terms and conditions hereof, the Swingline Lender mayBorrower may borrow under this Section 2.01, in its sole discretionprepay under Section 2.03, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline and reborrow under this Section 2.01. Loans shall may be funded with a Borrowing of Revolving Credit Base Rate Loans or Eurodollar Rate Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (as further provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseherein.
Appears in 1 contract
Loans. (a) Lender in its sole discretion shall determine all of the conditions, terms and features of the Loans, including loan amounts, fees and charges, interest rates, credit limits, and credit standards of the Loans. Subject to and upon the terms and conditions herein set forthof this Agreement, each Lender severally agrees to that it will make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender maytime, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, criteria to Consumers who submit an application through CSO and meet the proceeds thereof credit standards set forth in Lender’s Policies. CSO shall be applied either contact Lender directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event thator, in the sole judgment of the Swingline alternative, use a third-party underwriter designated by Lender, any Mandatory Borrowing cannot to obtain only “approvals” or “denials” for any reason be applications based on Lender’s Policies, including Lender’s underwriting criteria and scoring models. Neither Lender, nor CSO, nor their respective employees shall suggest to Consumers that Loans are made on the date otherwise required above (including or approved by CSO. Except as a result of the commencement of a proceeding under the Bankruptcy Code expressly provided in respect of the Borrower)this Agreement, each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary the sole owner of all Loans made pursuant to cause each this Agreement and CSO shall have no right, title or interest in such Loans. CSO shall ▇▇▇▇ its [****] = “CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.” ▇▇▇▇▇ and records to indicate clearly the Lender’s ownership interest in any Loans and Lender’s Loan Documents (as defined in Section D(3)(c). Nothing herein shall be deemed to commit Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account originate or fund any particular level or number of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseLoans.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions set forth herein set forthand in the Credit Agreement, (i) each Lender severally agrees to make person designated as a loan or loans “Term Lender” on Schedule I hereto (each, a “Revolving Credit Loan2018 Term Lender”) agrees, severally and not jointly, to make a 2018 Term Loan to the Borrower, which Revolving Credit Loans Borrowers on the Amendment No. 4 Effective Date (ias defined below) shall in an aggregate principal amount not to exceed the Revolving amount set forth opposite its name on Schedule I hereto, and (ii) from and after the making of the 2018 Term Loans on the Amendment No. 4 Effective Date, (x) each 2018 Term Loan shall be a “Term Loan” and a “Loan” and, unless the context requires a reference solely to the Term Loans made prior to the Amendment No. 4 Effective Date, an “Initial Term Loan” (for the avoidance of doubt, the Maturity Date for the 2018 Term Loans shall be the same as the Maturity Date for the Initial Term Loans made prior to the Amendment No. 4 Effective Date), (y) each Person that holds 2018 Term Loans from time to time shall be a “Term Lender” and a “Lender”, and (z) the aggregate 2018 Term Loans of all Persons that hold 2018 Term Loans shall be the “Term Facility”, in each case, for all purposes under the Credit Commitment Agreement (as amended hereby) and the other Loan Documents. Without limiting the foregoing, the Borrowers hereby unconditionally promise to repay the 2018 Term Loans in accordance with the schedule of such Lender installment payments set forth in Section 2.07(a) of the Credit Agreement (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect amendments thereto effected hereby and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to as the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed further adjusted in accordance with the provisions hereofCredit Agreement). On Amounts borrowed as 2018 Term Loans and subsequently repaid may not be reborrowed. The proceeds of the Revolving Credit Maturity Date, all outstanding Revolving Credit 2018 Term Loans shall be repaid in fullused by the Borrowers solely to make the Loan Repayment (as defined below). For the avoidance of doubt, the making of the 2018 Term Loans hereunder shall constitute “Specified Refinancing Debt” within the meaning of Section 2.18 of the Credit Agreement. The obligations 2018 Term Lenders, constituting the Required Lenders, hereby waive compliance with clause (y) of each Lender hereunder shall be several and not jointSection 2.18(c).
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that On the Amendment No. 4 Effective Date, (i) any exercise of such option the Borrowers shall not affect prepay in full all 2017 Term Loans outstanding under the obligation Credit Agreement, together with all accrued and unpaid interest thereon and all fees and expenses incurred in connection with the foregoing, with the proceeds of the Borrower 2018 Term Loans and cash on hand of the Borrowers (collectively, the “Loan Repayment”). Notwithstanding the making of the Loan Repayment, the holders of the 2017 Term Loans shall thereafter continue to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs be entitled to the Borrower resulting therefrom (which obligation benefits of Sections 3.01, 3.03, 3.04, 3.05, 3.06 and 10.04 of the Lender shall not require it to take, or refrain from taking, actions that it determines would result Credit Agreement as in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and effect immediately prior to the Swingline Maturity Date, Amendment No. 4 Effective Date and shall continue to make a loan or loans (each, a “Swingline Loan”) be bound by Section 9.07 of the Credit Agreement as in effect immediately prior to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereofAmendment No. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.4
Appears in 1 contract
Sources: Credit Agreement (PPD, Inc.)
Loans. (a) Subject to and upon the terms and conditions herein set forthhereof, each Lender severally agrees to make a loan (individually, an “Initial Loan” and collectively, the “Initial Loans”) to the Borrower on the Closing Date, in an aggregate principal amount equal to such Lender’s Commitment. Any Commitments not drawn on the Closing Date shall terminate.
(b) Subject to the terms and conditions hereof, each Lender severally agrees, if the Initial Loans have not been repaid or loans exchanged for Exchange Notes on the Initial Maturity Date, to convert the then outstanding principal amount of its Initial Loans into a loan (eachindividually, a “Revolving Credit Term Loan” and collectively, the “Term Loans”; the Initial Loans and the Term Loans, collectively, the “Loans”) to the Borrower, which Revolving Credit Loans (i) shall not exceed on the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Initial Maturity Date, (iv) may, at the option in an aggregate principal amount equal to then outstanding principal amount of the BorrowerInitial Loans held by such Lender. Upon the making by such Lender of such Term Loan, be incurred and maintained as, and/or converted into, ABR each Lender shall cancel on its records a principal amount of the Initial Loans or Eurodollar Loans; provided that all Revolving Credit held by such Lender corresponding to the principal amount of Term Loans made by each such Lender, which corresponding principal amount of the Lenders pursuant Initial Loans shall be satisfied by the conversion thereof into Term Loans.
(c) Prior to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Initial Maturity Date, all outstanding Revolving Credit the Initial Loans shall be repaid in fullcomprised entirely of Eurodollar Loans or ABR Loans. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 terms of Default exists and is continuing until such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuingthis Agreement.
(iid) On The failure of any Business DayLender to make the Initial Loan to be made by it shall not relieve any other Lender of its obligation, if any, hereunder to make its Initial Loan on the Swingline Closing Date, but no Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing responsible for the failure of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall any other Lender to make the Initial Loan to be made by such other Lender on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseClosing Date.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Brown Tom Inc /De)
Loans. (a) Subject to and upon the terms and conditions set forth herein set forthand in the Credit Agreement, (i)(x) each Lender severally agrees to make person designated as a loan or loans “U.S. Term Lender” on Schedule II hereto (each, a “Revolving Credit LoanNew U.S. Term Lender”) agrees, severally and not jointly, to make a New U.S. Term Loan to Terex on the Amendment Effective Date in an aggregate principal amount not to exceed the amount set forth opposite its name on Schedule II hereto and (y) each person designated as a “Euro Term Lender” on Schedule II hereto (each, a “New Euro Term Lender”) agrees, severally and not jointly, to make a New Euro Term Loan to the Borrower, which Revolving Credit Loans (i) shall European Borrower on the Amendment Effective Date in an aggregate principal amount not to exceed the Revolving Credit Commitment of such Lender (after giving effect thereto amount set forth opposite its name on Schedule II hereto, and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to making of the Revolving Credit Maturity New Term Loans on the Amendment Effective Date, (iv) mayeach New U.S. Term Loan shall be a “U.S. Term Loan” and a “Loan”, at each New Euro Term Loan shall be a “Euro Term Loan” and a “Loan”, each New U.S. Term Lender shall be a “U.S. Term Lender” and a “Lender” and each New Euro Term Lender shall be a “Euro Term Lender” and a “Lender”, in each case, for all purposes under the option Credit Agreement as amended hereby and the other Loan Documents. The proceeds of the Borrower, New Term Loans will be used by Terex and the European Borrower solely to make the Loan Repayment (as defined below) and to pay fees and expenses incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointconnection therewith.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that On the Amendment Effective Date, (i) any exercise of such option Terex shall not affect repay all Existing U.S. Term Loans outstanding under the obligation Credit Agreement, together with accrued and unpaid interest thereon, with the proceeds of the Borrower to repay such New U.S. Term Loans and cash on hand of Terex (the “U.S. Loan Repayment”) and (ii) in exercising such optionthe European Borrower shall repay all Existing Euro Term Loans outstanding under the Credit Agreement, such Lender shall use its reasonable efforts to minimize any increased costs to together with accrued and unpaid interest thereon, with the Borrower resulting therefrom (which obligation proceeds of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it New Euro Term Loans and in cash on hand of the event of such request for costs for which compensation is provided under this AgreementEuropean Borrower (the “Euro Loan Repayment” and together with the U.S. Loan Repayment, the provisions of Section 2.10 shall apply“Loan Repayment”).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Credit Agreement (Terex Corp)
Loans. Make advances, loans or extensions of credit to any Person, including any Parent, Subsidiary or Affiliate except (a) Subject intercompany loans and advances made by any Borrower to and upon the terms and conditions herein set forth, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the any other Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make intercompany loans and advances made by any Eurodollar Loan by causing Borrower to any domestic Guarantor or to any foreign branch or Affiliate of such Lender Subsidiary whose issued and outstanding Equity Interests (not to make such Loan; provided that (i) any exercise of such option shall not affect the obligation exceed 65% of the Equity Interests) owned by any Borrower, Guarantor or Subsidiary of any Borrower or Guarantor are Subsidiary Stock and have been pledged to repay such Loan and Agent (iia “Qualified Foreign Subsidiary”) in exercising such option, such Lender shall use its reasonable efforts an aggregate amount not to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agreesexceed $275,000,000, at any time and from (c) intercompany loans and advances made by any Borrower to a Subsidiary of any Borrower which Subsidiary is not a Qualified Foreign Subsidiary in an aggregate amount not to exceed $10,000 at any time; provided that in each case (i) if requested by Agent, each Borrower, Guarantor or Qualified Foreign Subsidiary, as the case may be, shall execute and deliver to each other Borrower a demand note (collectively, the “Intercompany Notes”) to evidence any such intercompany Indebtedness owing at any time by such Borrower, such Guarantor or such Qualified Foreign Subsidiary to such other Borrowers which Intercompany Notes shall be in form and substance satisfactory to Agent and shall be pledged and delivered to Agent as additional collateral security for the Obligations; (ii) each Borrower shall record all intercompany transactions on its books and records in a manner satisfactory to Agent; (iii) the obligations of each Borrower, each Guarantor and each Qualified Foreign Subsidiary under any such Intercompany Notes shall be subordinated to the Obligations of such Borrower, such Guarantor and such Qualified Foreign Subsidiary hereunder or under any other Document in a manner satisfactory to Agent; (iv) at the time on any such intercompany loan or advance is made by any Borrower to any other Borrower or any Guarantor or any Qualified Foreign Subsidiary and after giving effect thereto, each such Borrower, Guarantor or Qualified Foreign Subsidiary shall be solvent; and (v) no Event of Default would occur and be continuing after giving effect to any such proposed intercompany loan. The amount of all intercompany loans as of the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loanis set forth on Schedule 7.5.”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Horizon Offshore Inc)
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each Lender severally agrees the Lenders agree to make a loan one or more loans hereunder (each, a “Revolving Credit Loan”"TRANCHE A LOAN") to the Borrower, which Revolving Credit Loans (i) shall not exceed Borrower and/or the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and Borrowing Subsidiaries from time to time on and after during the Closing period from the Effective Date and prior to the Revolving Credit Maturity Termination Date, (iv) may, at as requested by the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed Borrower in accordance with Section 2, PROVIDED that, subject to Section 3(b), the provisions hereof. On the Revolving Credit Maturity Date, aggregate principal amount of all outstanding Revolving Credit Tranche A Loans shall be repaid in full. The obligations not exceed $100,000,000, plus the amount of each Lender hereunder shall be several and not jointcorresponding Interest Loans, at any time.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs Subject to the Borrower resulting therefrom (which obligation terms and conditions of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions Lenders agree to make one or more loans hereunder (each, a "TRANCHE B LOAN") to the Borrower and/or the Borrowing Subsidiaries from time to time during the period from the Effective Date to the Termination Date, as requested by the Borrower in accordance with Section 2, PROVIDED that, subject to Section 3(b), the aggregate principal amount of all outstanding Tranche B Loans shall not exceed $200,000,000, plus the amount of corresponding Interest Loans, at any time.
(c) Subject to the terms and conditions of this Agreement, the Lenders agree to make one or more loans hereunder (each, a "TRANCHE C LOAN") to the Borrower and/or the Borrowing Subsidiaries from time to time during the period from the Effective Date to the Termination Date, as requested by the Borrower in accordance with Section 2, PROVIDED that, subject to Section 3(b), the aggregate principal amount of all outstanding Tranche C Loans shall not exceed $98,000,000, plus the amount of corresponding Interest Loans, at any time.
(d) Subject to the terms and conditions of this Agreement, the Lenders agree to make one or more loans hereunder (each, a "TRANCHE D LOAN") to the Borrower and/or the Borrowing Subsidiaries from time to time during the period from the Effective Date to the Termination Date, as requested by the Borrower in accordance with Section 2, PROVIDED that, (I) subject to Section 3(b), the aggregate principal amount of all outstanding Tranche D Loans shall not exceed $150,000,000, plus the amount of corresponding Interest Loans, at any time, and (II) Tranche D Loans shall only be made available if the Brazilian Debenture is not executed or such funding is otherwise required or permitted to be made in accordance with the terms of the Supplemental Agreement to be entered into among AT&T, ATTL and ABN AMRO Trustees Limited, as collateral and intercreditor agent in connection with the Vendor Financing Facility (the "SUPPLEMENTAL AGREEMENT"). The amount of Interest Loans outstanding from time to time corresponding to Tranche D Loans shall not be taken into account for purposes of determining if a Tranche D Loan is required to be made under the Supplemental Agreement.
(e) Until the date on which (I) principal, premium (if any), accrued interest and all other amounts then due and owing on the Vendor Financing Facility have been paid in full at final maturity or (II) in the case of Loans other than Tranche D Loans, the Vendor Financing Facility otherwise permits cash payment of interest hereunder, the Borrowing Parties shall not make any cash interest payments on any Loans, and, on the applicable interest payment dates prior to such date, the relevant Borrowing Party shall borrow and the relevant Lenders shall be deemed to have loaned to such Borrowing Party an interest loan (an "INTEREST LOAN") in a principal amount equal to the accrued interest due (and not paid in cash) from such Borrowing Party on such date. Each Interest Loan shall be of the same type of Loan as the principal amount to which such interest relates, and the amount of such Interest Loan shall be recorded appropriately in the records of the Lenders. Each Interest Loan shall be deemed a "Loan" of the type hereunder for all purposes (including for purposes of this paragraph), except for the purposes of the proviso to each of paragraphs (a) through (d) of Section 2.10 shall apply1 and for purposes of Section 3(b)(i).
(if) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and The Borrowing Subsidiaries listed on Schedule A may be changed from time to time on as agreed by the Lenders and after the Closing Date and Borrower, PROVIDED that any Person added to such list becomes a party to this Agreement.
(g) The parties acknowledge that, prior to any advances of Loans in accordance with Section 2 hereof, the Swingline Maturity principal amount of, and capitalized and accrued interest on, all outstanding Tranche A Loans, Tranche B Loans, Tranche C Loans and Tranche D Loans is as set forth in Schedule C hereto (which schedule shall be updated as of the Effective Date). As of the Effective Date, to make a loan all such outstanding amounts set forth in Schedule C hereto, as so updated, (plus additional amounts outstanding or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (Aaccrued as of such date) shall be ABR deemed to constitute Tranche A Loans, (B) shall have Tranche B Loans, Tranche C Loans and Tranche D Loans, respectively, hereunder without the benefit necessity of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effectfurther action, and (G) may be repaid this Agreement shall replace and reborrowed in accordance with supersede the provisions hereof. On the Swingline Maturity DateExisting Loan Agreements, all outstanding Swingline Loans which shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuingterminate.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Credit Facility Agreement (At&t Latin America Corp)
Loans. (a) Each Loan shall be made by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of Lenders are several and no Lender shall be responsible for any other Lender’s failure to make any Loan as required.
(b) Subject to and upon the terms and conditions contained herein set forthand until the Termination Date, each Lender severally agrees the Lenders shall make loans to make Borrower on a loan revolving basis in amounts requested by Borrower from time to time (the “Loans” and each, a “Loan”) in an aggregate amount outstanding at any time not to exceed the amount permitted by this Section 2.02. Each Loan shall be in an aggregate principal amount of not less than the Minimum Loan Amount or loans an integral multiple of $100,000.00 in excess thereof.
(c) Subject to availability, Borrower may request the L/C Issuer to issue trade, commercial documentary letters of credit (each, a “Revolving Credit LoanDocumentary Letter of Credit”) and standby letters of credit (“Standby Letters of Credit”, and each, a “Standby Letter of Credit”, collectively with Documentary Letters of Credit, “Letters of Credit”), in Dollars or any Alternative Currency, during the period from the Effective Date to the Borrower, which Revolving thirtieth Business Day prior to the Maturity Date; provided that immediately after giving effect to the issuance of each Letter of Credit Loans (i) shall the Letter of Credit Exposure of all Lenders would not exceed the Revolving Letter of Credit Commitment of such Lender (after giving effect thereto Sublimit and to the application of the proceeds thereof), (ii) the Revolving Credit Exposure of all Lenders would not exceed the aggregate Commitments of all Lenders.
(d) The sum of the aggregate principal amount of all Loans and the aggregate Letters of Credit Exposure shall notat no time exceed the lesser of (i) the Maximum Amount and (ii) the Borrowing Base. The Lenders shall have no obligation to make any Loan and the L/C Issuer shall have no obligation to issue any Letter of Credit if, after giving effect thereto and to the application making of such Loan or the proceeds thereofissuance of such Letter of Credit, at any time result in the Total Revolving Credit Outstandings at such time Exposure would exceed the lesser of (i) the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize the Borrowing Base.
(e) Notwithstanding any increased costs to the Borrower resulting therefrom (which obligation other provision of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, Borrower shall not be entitled to request, or to elect to convert or continue, any Loan if the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and Interest Period requested with respect thereto would end after the Closing Date and prior to the Swingline Maturity Termination Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) and Borrower shall not exceed at be entitled to request the issuance of any time outstanding Letter of Credit or any renewal thereof which would expire after the Swingline Commitment, (D) shall not exceed, Termination Date or provides for any such Lender, a drawing thereunder after the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Termination Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Loan and Security Agreement (K-Sea Transportation Partners Lp)
Loans. (a) Subject to and upon the terms and conditions herein set forthhereof, each Lender severally agrees to make Loans on a loan or loans (each, a “Revolving Credit Loan”) revolving credit basis to each Borrower from time to time during the Borrower, which Revolving Credit Loans Commitment Period; provided that (i) no Loan shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall notbe made if, after giving effect thereto and to the making of such Loan and the simultaneous application of the proceeds thereof, at any time result in the Total amount of the aggregate Revolving Credit Outstandings at such time Exposure would exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option aggregate amount of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan Commitments and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) no Loan shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at made in any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall notAvailable Foreign Currency if, after giving effect thereto and to the making of such Loan and the simultaneous application of the proceeds thereof, result at any time the aggregate amount of the Available Foreign Currency Exposure would exceed the Available Foreign Currency Exposure Cap. During the Commitment Period each Borrower may use the Commitments by borrowing Loans, prepaying Loans in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then whole or in effectpart, and (G) may be repaid and reborrowed reborrowing Loans, all in accordance with the provisions terms and conditions hereof. On the Swingline Maturity Date, all outstanding Swingline .
(b) The Loans shall be repaid made in full. The Swingline Lender shall not make US Dollars or, subject to the limitation on the Available Foreign Currency Exposure set forth in clause (a) above, 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender mayAvailable Foreign Currency and, in its sole discretioneach case, give notice may from time to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall time be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that in the amount case of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified Loans denominated in Section 2.2US Dollars, LIBOR Loans or ABR Loans, (ii) whether any conditions specified in Section 7 are then satisfiedthe case of Loans denominated in euro, EURIBOR Loans, (iii) whether a Default or an Event in the case of Default has occurred Loans denominated in Canadian Dollars, CDOR Loans and is continuing, (iv) in the date case of such Mandatory Loans denominated in Available Foreign Currencies other than euro and Canadian Dollars, LIBOR Loans, as determined by the applicable Borrower thereof and set forth in the Notice of Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment Notice of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in Conversion with respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentagesthereto; provided that all principal and interest payable on such Swingline Loans no LIBOR Loan, EURIBOR Loan or CDOR Loan shall be for made after the account of the Swingline Lender until the date the respective participation day that is purchased and, one month prior to the extent attributable to the purchased participation, Maturity Date.
(c) Each Loan shall be payable to made by the Lender purchasing same from and after such date of purchaseLenders ratably in accordance with their Commitments.
Appears in 1 contract
Sources: Multi Currency Credit Agreement (Harman International Industries Inc /De/)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Initial Tranche A Term Lender severally agrees to make a loan or loans (each, an “Initial Tranche A Term Loan”) to the Borrower, which Initial Tranche A Term Loans (i) shall not exceed, for any such Lender, the Initial Tranche A Term Loan Commitment of such Initial Tranche A Term Lender, (ii) shall not exceed, in the aggregate, the Total Initial Tranche A Term Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in U.S. Dollars, (iv) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all such Initial Tranche A Term Loans made by each of the Initial Tranche A Term Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Tranche A Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Tranche A Term Loan Maturity Date, all outstanding Initial Tranche A Term Loans shall be repaid in full.
(b) Subject to and upon the terms and conditions herein set forth, each Initial Tranche B Term Lender severally agrees to make a loan or loans (each, an “Initial Tranche B Term Loan”) to the Borrower, which Initial Tranche B Term Loans (i) shall not exceed, for any such Lender, the Initial Tranche B Term Loan Commitment of such Initial Tranche B Term Lender, (ii) shall not exceed, in the aggregate, the Total Initial Tranche B Term Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in U.S. Dollars, (iv) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all such Initial Tranche B Term Loans made by each of the Initial Tranche B Term Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Tranche B Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Tranche B Term Loan Maturity Date, all outstanding Initial Tranche B Term Loans shall be repaid in full.
(c) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in U.S. Dollars, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof), result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (ivv) may, may at the option of the Borrower, Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bd) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided provided, that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(ie) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan” and collectively, the “Swingline Loans”) to the BorrowerBorrower in U.S. Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(f), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, effect and (GE) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower Borrower, the Administrative Agent 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 of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(iif) On any Business Day, the The Swingline Lender may, (x) may in its sole discretiondiscretion on any Business Day prior to the tenth Business Day after the date of extension of any Swingline Loan and (y) shall on the tenth Business Day after such extension date (so long as such Swingline Loan remains outstanding), give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit LoansLoans denominated in U.S. Dollars, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same immediately succeeding Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 7.1 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
(g) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Credit Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit Lender in its capacity as a lender of Swingline Loans hereunder.
(h) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract
Loans. (a) Subject to and upon On the terms and subject to the conditions herein set forthforth in this Agreement, (i) each Revolving Lender severally hereby agrees to make a loan advances to or loans on behalf of the Borrower (eachindividually, a “Revolving Credit Loan” and collectively the “Revolving Loans”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and the Swingline Lender hereby agrees to the application make Swingline Loans to or on behalf of the proceeds thereofBorrower (individually, at any time result a “Swingline Loan” and collectively the “Swingline Loans”), in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effecteach case, (iii) shall be made at any time and from time to time on and after any Business Day (each such date on which a Loan is made, an “Loan Date”) during the Closing period from the Effective Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option end of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar LoansRevolving Period; provided that, there shall be no more than two (2) Loan Dates (unless otherwise consented to by the Agent and each affected Lender) during any calendar week (for the avoidance of doubt, a Swingline Refund Date is not in and of itself a Loan Date); provided further that, pursuant to Section 2.2(e), the Borrower shall be deemed to request that all Revolving Credit Loans made by each the Lenders make advances to the Unfunded Exposure Account on the last day of the Revolving Period to reduce the Exposure Amount Shortfall to zero; provided further that, subject to Section 2.1(c), the Borrower shall be deemed to request that the Lenders pursuant to make advances on the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans last day of the same Type Revolving Period in an amount necessary to settle pending acquisitions of Eligible Collateral Obligations; provided further that, under no circumstances will any Lender be obligated to fund advances in excess of its Commitment. The Multicurrency Loans shall be made solely by the Multicurrency Lenders and (v) may the Dollar Loans shall be repaid made solely by the Dollar Lenders and reborrowed the Multicurrency Lenders, as applicable, in each case in accordance with the provisions hereofSection 2.2(d). On the Revolving Credit Maturity Date, all outstanding Revolving Credit Swingline Loans shall will only be repaid funded in full. The obligations of each Lender hereunder shall be several and not jointDollars.
(b) Each Term Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender hereby agrees to make such advances to or on behalf of the Borrower (individually, a “Term Loan; provided that ” and collectively the “Term Loans”) on the related Funding Date, (1)(x) pursuant to an Assignment Agreement or (y) upon a request by the Borrower pursuant to Section 2.2(a) or (2) on any Conversion Date during the period from the Effective Date until the Term Commitment Termination Date, in each case, in an aggregate principal amount at any one time outstanding up to but not exceeding (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan Term Lender’s Term Commitment and (ii) in exercising such option, such Lender shall use its reasonable efforts as to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreementall Term Lenders, the provisions of Total Term Commitment at such time. The Multicurrency Loans shall be made solely by the Multicurrency Lenders and the Dollar Loans shall be made solely by the Dollar Lenders and the Multicurrency Lenders, as applicable, in each case in accordance with Section 2.10 shall apply2.2(d).
(ic) Subject to and upon the terms and conditions herein set forth, the Swingline Under no circumstances shall any Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (eachRevolving Loan, a “Term Loan or a Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall notLoan if, after giving effect thereto to such Loan and to the application any purchase of the proceeds thereofEligible Collateral Obligations in connection therewith, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (Gi) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a an Unmatured Event of Default or an Event of Default exists and is continuing until such time as would exist, (ii) if immediately after giving effect thereto, a Borrowing Base Deficiency would exist, (iii) the Swingline Lender shall have received written notice of (x) rescission of all such notices from Outstanding Loan Amount would exceed the party or parties originally delivering such notice Facility Amount or (yiv) the waiver Foreign Currency Loan Amount would exceed the Foreign Currency Sublimit on such day. Subject to the terms of such Default or Event of Default in accordance with this Agreement, during the Revolving Period, the Borrower may borrow, reborrow, repay and prepay (subject to the provisions of Section 13.1 2.4) one or that such Default or Event of Default is no longer continuingmore Revolving Loans.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Loan and Servicing Agreement (AGL Private Credit Income Fund)
Loans. (a) Subject to the satisfaction or waiver of the conditions precedent set forth in Section 4 below, commencing on or after the date hereof and upon at any time five (5) Business Days prior to the terms Maturity Date (as defined below), the Borrower may borrow, and conditions herein set forth, each the Lender severally agrees hereby commits to make a loan or lend (any such loans (eachextended hereunder, a “Revolving Credit Loan”), an aggregate principal amount of up to Three Million Dollars ($3,000,000) by providing written notice to the BorrowerLender no less than five (5) Business Days prior to the date of the borrowing, which Revolving Credit Loans notice shall include (ix) shall not exceed the Revolving Credit Commitment amount of such Lender borrowing, (after giving effect thereto y) the date of such borrowing and to (z) a description of the application intended use of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided borrowing that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed demonstrates that such use is in accordance with the provisions hereofBorrower’s Business Plan and Budget attached as Schedule 2.1 of the SPMA (the “Budget”); provided, that, each such borrowing shall be in a minimum principal amount of $500,000 or any larger multiple of $100,000. On The Lender’s commitment under this Section 1(a) shall terminate immediately and without further action (i) upon the Revolving Credit making of any Loan on the date thereof in respect of the amount thereof and (ii) in its entirety five (5) Business Days prior to the Maturity Date, all outstanding Revolving Credit . Any amount of the Loans that is subsequently repaid or prepaid may not be reborrowed. The proceeds of the Loans shall solely be repaid applied by the Borrower in full. The obligations of each Lender hereunder shall be several and not jointaccordance with the Budget.
(b) Each The Lender may at its option make any Eurodollar Loan is authorized to maintain a register (the “Register”) to record the date and amount of Loans made by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it from time to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreementtime, the provisions amount of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and interest accruing from time to time on and after the Closing Date date and prior to the Swingline Maturity Dateamount of each payment or prepayment of principal thereof, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) and any such recordation shall be ABR Loans, (B) shall have the benefit constitute presumptive evidence of the provisions accuracy of Section 2.1(c)(ii)the information so recorded. The Register shall include the name and address of the Lender, (C) and any transfer of a Loan shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing effective unless recorded in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseRegister.
Appears in 1 contract
Loans. (a) Subject The Lenders severally agree to make term loans (each a “Loan” and upon collectively, the terms and conditions herein set forth“Loans”) to the Borrower as follows:
(i) On the Closing Date, each Initial Advance Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed the Revolving Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not joint.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom in an amount equal to such Lender’s Initial Advance Commitment, which loan shall be disbursed in a single advance (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreementcollectively, the provisions of Section 2.10 shall apply“Initial Advance Loans”).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Dayeach Delayed Advance Date, the Swingline each Delayed Advance Lender may, in its sole discretion, give notice severally agrees to make loans to the Lenders, with a copy Borrower in an aggregate amount not to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each exceed such Lender’s Revolving Credit Commitment PercentageDelayed Advance Commitment, which Loans may be drawn in up to two advances (collectively, the “Delayed Advance Loans”). On each date that Delayed Advance Loans are made, the Borrower shall prepay Loans outstanding on such date (and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice pay any additional amounts required pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (iSection 3.05) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable necessary so that each Lender ratably holds a portion of each Loan in the proportion that the aggregate Outstanding Amounts owed to such Lender bear to the purchased participationaggregate Outstandings Amounts owed to all Lenders at such time.
(b) Lenders may, but shall not be payable required to, agree to commit to make additional Loans if requested by the Lender purchasing same from and after such date of purchaseBorrower pursuant to Section 2.13 or Section 2.14.
(c) Amounts borrowed under this Section 2.01 which are repaid or prepaid may not be reborrowed.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Western Refining, Inc.)
Loans. i. Subject to and upon the terms and conditions set forth in the Amendment, each Lender having an “Initial Term Loan Commitment” severally agrees to make a loan or loans 77 LPL – Conformed A&R Credit Agreement (aeach, an “Initial Term Loan”) to the Borrower, which (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Term Loan Commitment, (iii) shall be made on the Effective Date, (iv) shall be denominated in Dollars, (v) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or EurodollarTerm SOFR Rate Loans, and (vi) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
ii. Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in Dollars, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof), result in such ▇▇▇▇▇▇’s Revolving Credit Exposure at such time exceeding such ▇▇▇▇▇▇’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing Fifth Amendment Effective Date and prior to the Revolving Credit Maturity Date, (ivv) may, may at the option of the Borrower, Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar EurodollarTerm SOFR Rate Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bi) Subject to and upon the terms and conditions set forth herein and in the Second Amendment, each Tranche B Term Lender severally agrees to make a loan or loans (each, a “Tranche B Term Loan”) to the Borrower, which (i) shall not exceed, for any such Lender, the Tranche B Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Tranche B Term Loan Commitment, (iii) shall be made on the Second Amendment Effective Date, (iv) may be made, in whole or in part, by means of a dollar-for-dollar, cashless exchange of Initial Term Loans for Tranche B Term Loans (in each case only to the extent so agreed by the Borrower, the Administrative Agent and the applicable Tranche B Term Lender), (v) shall be denominated in Dollars, (vi) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or EurodollarTerm SOFR Rate Loans; provided that all Tranche B Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Tranche B Term of the same Class, and (vii) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Tranche B Term Loan Maturity Date, all outstanding Tranche B Term Loans shall be repaid in full.
(ii) Subject to and upon the terms and conditions set forth herein and in the Fourth Amendment, each Tranche B-1 Term Lender severally agrees to make a loan or loans (each, a “Tranche B-1 Term Loan”) to the Borrower, which (i) shall not exceed, for any such Lender, the Tranche B-1 Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Tranche B-1 Term Loan Commitment, (iii) shall be made on the Fourth Amendment Effective Date, (iv) may be made, in whole or in part, by means of a dollar-for-dollar, cashless exchange of Tranche B Term Loans for Tranche B-1 Term Loans (in each case only to the extent so agreed by the Borrower, the Administrative Agent and the applicable Tranche B-1 Term Lender), (v) shall be denominated in Dollars, (vi) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or EurodollarTerm SOFR Rate 78 LPL – Conformed A&R Credit Agreement Loans; provided that all Tranche B-1 Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Tranche B-1 Term of the same Class, and (vii) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Tranche B-1 Term Loan Maturity Date, all outstanding Tranche B-1 Term Loans shall be repaid in full.
iv. Each Lender may at its option make any Eurodollar EurodollarTerm SOFR Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided provided, that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) v. Subject to and upon the terms and conditions herein set forth, the each Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Fifth Amendment Effective Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan” and collectively, the “Swingline Loans”) to the BorrowerBorrower in Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(f), (C) shall not exceed at any time outstanding the Swingline CommitmentCommitment of such Swingline Lender, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in (x) the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time Commitment then in effect or (y) the amount of any Swingline Lender’s Revolving Credit Exposure exceeding the Maximum Amount its respective Revolving Credit Commitment then in effect, and (GE) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The No Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower Borrower, the Administrative Agent or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the such Swingline Lender shall have received written notice of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the vi. Any Swingline Lender may, (x) may in its sole discretiondiscretion on any Business Day prior to the tenth Business Day after the date of extension of any Swingline Loan and (y) shall on the tenth Business Day after such extension date (so long as such Swingline Loan remains outstanding), give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit LoansLoans denominated in Dollars, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same immediately succeeding Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Revolving Credit Lenders pro rata based on each such Lender▇▇▇▇▇▇’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the such Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the such Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 7.1 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any 79 LPL – Conformed A&R Credit Agreement reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the applicable Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the such Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the such Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
vii. The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Credit Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit Lender in its capacity as a lender of Swingline Loans hereunder.
viii. The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless any outstanding Swingline Loans of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract
Sources: Amendment to Credit Agreement (LPL Financial Holdings Inc.)
Loans. (a) Subject to and upon the terms and conditions set forth in the Amendment, each Lender having an “Initial Term Loan Commitment” severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower, which (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Term Loan Commitment, (iii) shall be made on the Effective Date, (iv) shall be denominated in Dollars, (v) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or Term SOFR Rate Loans, and (vi) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(b) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in Dollars, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof), result in such ▇▇▇▇▇▇’s Revolving Credit Exposure at such time exceeding such ▇▇▇▇▇▇’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing FifthSeventh Amendment Effective Date and prior to the Revolving Credit Maturity Date, (ivv) may, may at the option of the Borrower, Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Term SOFR Rate Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions set forth herein set forthand in the Second Amendment, the Swingline each Tranche B Term Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, severally agrees to make a loan or loans (each, a “Swingline Tranche B Term Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (Di) shall not exceed, for any such Lender, the Revolving Credit Tranche B Term Loan Commitment of such Lender, (Eii) shall notnot exceed, after giving effect thereto and in the aggregate, the Total Tranche B Term Loan Commitment, (iii) shall be made on the Second Amendment Effective Date, (iv) may be made, in whole or in part, by means of a dollar-for-dollar, cashless exchange of Initial Term Loans for Tranche B Term Loans (in each case only to the application extent so agreed by the Borrower, the Administrative Agent and the applicable Tranche B Term Lender), (v) shall be denominated in Dollars, (vi) may at the option of the proceeds thereofBorrower be incurred and maintained as, result at any time in Total Revolving Credit Outstandings at such time exceeding and/or converted into, ABR Loans or Term SOFR Rate Loans; provided that all Tranche B Term Loans made by each of the Maximum Amount then in effectLenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Tranche B Term of the same Class, and (Gvii) may be repaid and reborrowed or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Swingline Tranche B Term Loan Maturity Date, all outstanding Swingline Tranche B Term Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each from ----- the Closing Date and until the Commitment Termination Date
(i) Lender severally agrees (A) to make a loan or loans available to Borrower advances (each, a “"Revolving Credit Loan”Advance") and (B) to the Borrowerincur Letter of Credit Obligations, which Revolving Credit Loans (i) shall in an aggregate outstanding amount not to exceed the Revolving Credit Commitment of such Lender (after giving effect thereto Borrowing Availability, and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, Borrower may at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and its request from time to time on borrow, repay and after the Closing Date reborrow, and prior may cause Lender to the incur Letter of Credit Obligations, under this Section 1.1. The Revolving Credit Maturity DateLoan shall be evidenced by, (iv) may, at the option of the Borrower, and be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed repayable in accordance with the provisions hereof. On terms of, the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several Note and not jointthis Agreement.
(b) Each Borrower shall request each Revolving Credit Advance by written notice to Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate substantially in the form of such Exhibit A (each a "Notice of ---------- Revolving Credit Advance") given no later than 11:00 A.M. (New York City time) on the Business Day of the proposed advance. Lender shall be fully protected under this Agreement in relying upon, and shall be entitled to make such Loan; provided that rely upon, (i) any exercise Notice of such option shall not affect the obligation of the Borrower Revolving Credit Advance believed by Lender to repay such Loan be genuine, and (ii) in exercising such optionthe assumption that the Persons making electronic requests or executing and delivering a Notice of Revolving Credit Advance were duly authorized, such unless the responsible individual acting thereon for Lender shall use its reasonable efforts to minimize any increased costs have actual knowledge to the contrary. As an accommodation to Borrower, Lender may permit telephonic, electronic, or facsimile requests for a Revolving Credit Advance and electronic or facsimile transmittal of instructions, authorizations, agreements or reports to Lender by Borrower. Unless Borrower resulting therefrom (which obligation specifically directs Lender in writing not to accept or act upon telephonic, facsimile or electronic communications from Borrower, Lender shall have no liability to Borrower for any loss or damage suffered by Borrower as a result of Lender's honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically and purporting to have been sent to Lender by Borrower and Lender shall have no duty to verify the origin of any such communication or the identity or authority of the Person sending it.
(c) In making any Loan hereunder Lender shall not require it be entitled to take, rely upon the most recent Borrowing Base Certificate delivered to Lender by Borrower and other information available to Lender. Lender shall be under no obligation to make any further Revolving Credit Advance or refrain from taking, actions that it determines would result incur any other Obligation if Borrower shall have failed to deliver a Borrowing Base Certificate to Lender by the time specified in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply4.1(b).
(id) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.[Intentionally Left Blank]
Appears in 1 contract
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Lender severally agrees to make The Borrower may request a loan or loans Borrowing (each, other than a “Revolving Credit Loan”Conversion) under any Tranche by delivering a notice (a "Notice of Borrowing") to the BorrowerAdministrative Agent no later than 12:00 noon on the third Business Day or, in the case of ABR Loans, on the first Business Day, prior to the date of the proposed Borrowing (which Revolving Credit Loans Borrowing, in the case of the Term Tranche, shall be on the Closing Date). The Administrative Agent shall give each Lender prompt notice of each Notice of Borrowing. Each Notice of Borrowing shall be in substantially the form of Exhibit A and shall specify the requested (i) shall not exceed the Revolving Credit Commitment date of such Lender (after giving effect thereto and to the application of the proceeds thereof)Borrowing, (ii) shall not, after giving effect thereto and Tranche under which such Borrowing is to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effectbe made, (iii) shall Type of Loans to be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Datein connection with such Borrowing, (iv) mayInterest Period, at the option of the Borrowerif any, be incurred and maintained as, and/or converted into, ABR for such Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed amount of such Borrowing (which amount, in accordance with the provisions hereof. On case of the Revolving Credit Maturity DateTerm Tranche, all outstanding Revolving Credit Loans shall be the aggregate amount of the Term Commitments). Each proposed Borrowing shall conform to the requirements of Sections 3.03 and 3.04. Amounts borrowed under the Term Tranche pursuant to this Section 3.01 and repaid in full. The obligations of each Lender hereunder shall or prepaid may not be several and not jointreborrowed.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate shall, before 12:00 noon on the date of such Lender Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's offices at 1 Chase Manhattan Plaza, 8th Floor, New York, New York, in same day funds, such Lender's Percentage of such Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article VI, the Administrative Agent will make such Loanfunds available to the Borrower at the Administrative Agent's aforesaid address; provided provided, however, that the proceeds of (i) any exercise the Borrowing under the Term Tranche and (ii) the initial Extension of Credit under the Revolving Three-Year Tranche shall be applied first directly by the Administrative Agent on the Closing Date to the prepayment in full of all outstanding principal, accrued interest and other amounts then owing under the Existing Term Agreement and the Existing Revolving Agreement, respectively, and then, to the extent the proceeds of such option Borrowing and initial Extension of Credit exceed the amount necessary to prepay in full all outstanding principal, accrued interest and other amounts then owing under the Existing Term Agreement and the Existing Revolving Agreement, to the Borrower at the Administrative Agent's aforesaid address for general corporate purposes. Notwithstanding the foregoing, unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's Percentage of such Borrowing, the Administrative Agent may assume that such Lender has made such Percentage available to the Administrative Agent on the date of such Borrowing in accordance with the first sentence of this subsection (b), and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount.
(c) If and to the extent that any Lender (a "non-performing Lender") shall not affect have made available to the obligation Administrative Agent, in accordance with subsection (b) above, such Lender's Percentage of any Borrowing, the non-performing Lender and the Borrower severally agree to repay to the Administrative Agent forthwith on demand corresponding amounts, together with interest thereon for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Borrower Borrower, the interest rate applicable at the time to repay Loans made in connection with such Loan Borrowing and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation case of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Federal Funds Effective Rate. Within the limits of each Lender's Available Commitment under each Revolving Credit Commitment Tranche and subject to the other terms and conditions set forth in this Agreement for the making of Loans (including Section 8.01(h)), the Borrower may request (and the Lenders shall honor) one or more additional Borrowings under any Revolving Tranche from the performing Lenders to fund such repayment to the Administrative Agent. If a non-performing Lender shall repay to the Administrative Agent such corresponding amount in full (with interest as above provided), (x) the Administrative Agent shall apply such corresponding amount and interest to the repayment to the Administrative Agent (or repayment of Loans made to fund such repayment to the Administrative Agent), and shall make any remainder available to the Borrower and (y) such amount so repaid shall be deemed to constitute such Lender's Loan, made as part of such Lender, (E) shall not, after giving effect thereto and to Borrowing for purposes of this Agreement as if funded concurrently with the application other Loans made as part of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effectBorrowing, and (G) may such Lender shall forthwith cease to be repaid deemed a non-performing Lender; if and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline so long as such non-performing Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or the Required Lenders stating that a Default or repay such amount, and unless and until an Event of Default exists and is continuing until such time as the Swingline Lender Eligible Assignee shall have received written notice of (x) rescission of all such notices from assumed and performed the party or parties originally delivering such notice or (y) the waiver obligations of such Default or Event non-performing Lender, all computations by the Administrative Agent of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business DayPercentages, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) Commitments and payments hereunder shall be made on the same Business Day (provided that such notice is given without regard to the Lenders Commitments, or outstanding Loans, of such non-performing Lender, and any amounts paid to the Administrative Agent for the account of such non-performing Lender shall be held by the Swingline Administrative Agent in trust for such non-performing Lender before 1:00 p.m. (New York Time)in a non-interest-bearing special purpose account. Nothing herein shall in any way limit, waive or otherwise, on the next Business Day) by all Lenders pro rata based on each such otherwise reduce any claims that any party hereto may have against any non-performing Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline . The failure of any Lender to repay make the Swingline Loan to be made by it as part of any Borrowing shall not relieve any other Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees of its obligation, if any, hereunder to make such Revolving Credit 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 its Loan on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) Borrowing, but no Lender shall be responsible for the failure of any reduction in other Lender to make the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason Loan to be made by such other Lender on the date otherwise required above of any Borrowing.
(including as d) Any Lender may request that Loans made by it under any Tranche be evidenced by a result of Promissory Note. In such event, the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower)Borrower shall prepare, each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary execute and deliver to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be a Promissory Note payable to the order of such Lender purchasing same from (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such Promissory Note and interest thereon shall at all times (including after assignment pursuant to Section 11.07) be represented by one or more Promissory Notes in such date form payable to the order of purchasethe payee named therein (or, if such Promissory Note is a registered note, to such payee and its registered assigns).
Appears in 1 contract
Sources: Credit Agreement (CMS Energy Corp)
Loans. (a) Subject to and upon the terms and conditions herein set forthof this Agreement, each from the Closing Date and until the Commitment Termination Date (i) Lender severally agrees (A) to make a loan or loans available advances (each, a “"Revolving Credit Loan”Advance") and (B) to the Borrowerincur Letter of Credit Obligations, which Revolving Credit Loans (i) shall in an aggregate outstanding amount not to exceed the Revolving Credit Commitment of such Lender (after giving effect thereto Borrowing Availability, and to the application of the proceeds thereof), (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, Borrower may at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and its request from time to time on borrow, repay and after the Closing Date reborrow, and prior may cause Lender to the Revolving incur Letter of Credit Maturity DateObligations, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointunder this Section 1.1.
(b) Each Borrower shall request each Revolving Credit Advance by written notice to Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate substantially in the form of such Exhibit A (each a "Notice of Revolving Credit Advance") given no later than 11:00 A.M. (New York City time) on the Business Day of the proposed Revolving Credit Advance. Lender shall be fully protected under this Agreement in relying upon, and shall be entitled to make such Loan; provided that rely upon, (i) any exercise Notice of such option shall not affect the obligation of the Borrower Revolving Credit Advance believed by Lender to repay such Loan be genuine, and (ii) in exercising such optionthe assumption that the Persons making electronic requests or executing and delivering a Notice of Revolving Credit Advance were duly authorized, such unless the responsible individual acting thereon for Lender shall use its reasonable efforts to minimize any increased costs have actual knowledge to the contrary.
(c) The Revolving Credit Loan shall be evidenced by, and be repayable in accordance with the terms of, the Revolving Credit Note and this Agreement.
(d) Borrower resulting therefrom (which obligation of agrees that Lender, in making any Revolving Credit Advance or incurring any other Obligation hereunder, shall be entitled to rely upon the most recent Borrowing Base Certificate delivered to Lender by Borrower and other information available to Lender. Borrower further agrees that Lender shall not require it be under no obligation to take, make any further Revolving Credit Advance or refrain from taking, actions that it determines would result incur any other Obligation if Borrower shall have failed to deliver a Borrowing Base Certificate to Lender by the time specified in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply4.1(b).
(ie) Subject to and upon the terms and conditions herein set forthof this Agreement, Lender agrees to make the Swingline Lender in its individual capacity agrees, at any time and from time Term Loan to time Borrower on and after the Closing Date and prior to in the Swingline Maturity Date, to make a loan or loans (each, a “Swingline original principal amount specified in the Transaction Summary for the Term Loan”) to the Borrower, which Swingline Loans (A) . The Term Loan shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effectevidenced by, and (G) may be repaid and reborrowed repayable in accordance with the provisions hereof. On terms of, the Swingline Maturity DateTerm Note and this Agreement.
(f) Notwithstanding anything to the contrary contained in this Agreement, all outstanding Swingline Loans shall be repaid in full. 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 including Schedule C, Lender shall have received written notice no obligations to incur Letter of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be Obligations for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchaseBorrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Conmat Technologies Inc)
Loans. (ai) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower, which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made on the Closing Date and shall be denominated in Dollars, (iv) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Eurocurrency Loans; provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Initial Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.
(ii) Subject to and upon the terms and conditions set forth in the 2022 Incremental Agreement, each Lender having a 2022 Incremental Term Loan Commitment severally agrees to make 2022 Incremental Term Loans to the Borrower, which 2022 Incremental Term Loans (A) shall not exceed, for any such Lender, the 2022 Incremental Term Loan Commitment of such Lender, (B) shall not exceed, in the aggregate, the Total 2022 Incremental Term Loan Commitment, (C) shall be made on the 2022 Incremental Agreement Effective Date and shall be denominated in Dollars, (D) may, at the option of the Borrower, be Incurred and maintained as, and/or converted into, ABR Loans or Term SOFR Loans; provided that all such 2022 Incremental Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of 2022 Incremental Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the 2022 Incremental Term Loan Maturity Date, all outstanding 2022 Incremental Term Loans shall be repaid in full.
(i) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in Dollars or any Alternative Currency, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof), result in such ▇▇▇▇▇▇’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (ivv)
(i) mayin the case of Revolving Credit Loans denominated in Dollars, may at the option of the Borrower, applicable Borrower be incurred Incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Eurocurrency Loans and (ii) in the case of Revolving Credit Loans denominated in an Alternative Currency, shall be Incurred and maintained as Eurocurrency Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. -104- #95203802v2296160609v3 #96160609v5
(ii) On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar Fixed Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Fixed Rate Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Fixed Rate Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(i) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the BorrowerBorrower in Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(d)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving pro forma effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, and (GE) may be repaid and reborrowed in accordance with the provisions hereofhereof and (F) shall mature no later than the date ten Business Days after such Swingline Loan is made. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from either the Borrower or the Required Lenders Administrative Agent 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 of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Revolving Credit Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one same Business Day’s Days’ notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code any Debtor Relief Law in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing the same from and after such date of purchase.
(iii) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more applicable Revolving Credit Lenders that agree to serve in such capacity as provided below. The -105- #95203802v2296160609v3 #96160609v5
(iv) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) the Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract
Sources: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Loans. (a) Subject to the fulfillment of the conditions precedent set forth in Sections 5.01 and upon the terms 5.02 hereof, and conditions herein set forthprovided that no Default shall have occurred and be continuing hereunder, each Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to on the Borrower, which Revolving Credit Loans terms and conditions of this Agreement (i) shall not exceed a term loan in the amount of the Maximum Term Loan Credit evidenced by the Term Note (the "TERM LOAN"), and a commercial revolving loan in an amount up to the Maximum Revolving Loan Credit evidenced by the Revolving Note (the "REVOLVING LOAN"). The Term Loan and the Revolving Loan are individually referred to as a "LOAN" and collectively referred to as the "Loans". The Loans shall be made to Borrower in Dollars, from and including the Effective Date to and including the Maturity Date in an aggregate principal amount at any one time outstanding up to but not exceeding the lesser of (i) the Maximum Credit Commitment of such Lender (after giving effect thereto and to the application of the proceeds thereof), (ii) shall not, after giving the Borrowing Base as in effect thereto and to the application of the proceeds thereof, at any time result in the Total Revolving Credit Outstandings at such time exceed the Maximum Amount then in effect, (iii) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (iv) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder shall be several and not jointtime.
(b) Each Lender may at its option make any Eurodollar Loan by causing any domestic On or foreign branch or Affiliate about the date of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, Lender has made and fully advanced to Borrower, and Borrower hereby acknowledges receipt of, the provisions principal amount of Section 2.10 the Term Loan in an amount equal to the Maximum Term Loan Credit. Once all or any portion of the principal amount of the Term Loan is repaid at any time by Borrower, said principal amount of the Term Loan may not be re-advanced to or borrowed again by Borrower, and the Maximum Term Loan Credit shall apply)automatically be reduced by the amount of such repayment or prepayment of principal under the Term Loan.
(ic) Subject to and upon the terms and conditions herein set forthof this Agreement, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in Total Revolving Credit Outstandings at such time exceeding the Maximum Amount then in effect, and (G) Borrower may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. 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 of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or that such Default or Event of Default is no longer continuing.
(ii) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Lenders pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that borrow then unadvanced principal amounts under the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2Revolving Loan, (ii) whether repay the Revolving Loan, in full or in part, without penalty other than the payment of any conditions specified in Section 7 are then satisfiedapplicable Breakage Fee, and (iii) whether reborrow then unadvanced principal amounts under the Revolving Loan; provided, that, notwithstanding the foregoing, Lender shall not have any obligation to make Revolving Loan Advances to Borrower in excess of the Maximum Revolving Loan Credit and, in the event the obligation of Lender to make Revolving Loan Advances to Borrower is terminated as permitted hereunder, Lender shall not have any further obligation to make additional Revolving Loan Advances hereunder. In no event shall a Revolving Loan Advance be made when any Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
Appears in 1 contract
Sources: Master Loan and Security Agreement (American Strategic Income Portfolio Inc Iii)
Loans. (a) Subject to and upon the terms and conditions herein set forth, each Amendment No. 58 Initial Term L▇▇▇▇▇ severally agrees to make a loan (each, an “Amendment No. 58 Initial Term Loan”) to the Borrower, which Amendment No. 58 Initial Term Loans (i) shall not exceed, for any such Lender, the Amendment No. 58 Initial Term Loan Commitment of such Amendment No. 58 Initial Term Lender, (ii) shall not exceed, in the aggregate, the Total Amendment No. 58 Initial Term Loan Commitment, (iii) shall be made on the Amendment No. 58 Effective Date and shall be denominated in Dollars, (iv) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or SOFR Loans; provided that all such Amendment No. 58 Initial Term Loans made by each of the Amendment No. 58 Initial Term Lenders pursuant to the same Borrowing shall, unless otherwise provided herein, consist entirely of Amendment No. 58 Initial Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed. On the Amendment No. 58 Initial Term Loan Maturity Date, all outstanding Amendment No. 58 Initial Term Loans shall be repaid in full. It is understood and agreed that the Amendment No. 58 Initial Term Loans made on the Amendment No. 58 Effective Date shall be funded at 99.75100% of the principal amount thereof, and notwithstanding said discount all calculations hereunder with respect to such Amendment No. 58 Initial Term Loans, including the accrual of interest and the repayment or prepayment of principal, shall be based on 100% of the stated principal amount thereof.
(b) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the BorrowerBorrower in Dollars, which Revolving Credit Loans (i) shall not exceed exceed, for any such Lender, the Revolving Credit Commitment of such Lender Lender, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof), result in such L▇▇▇▇▇’s Revolving Credit Exposure at such time exceeding such L▇▇▇▇▇’s Revolving Credit Commitment at such time, (iiiii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceed the Maximum Amount Commitment then in effect, (iiiiv) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (ivv) may, may at the option of the Borrower, Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar SOFR Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vvi) may be repaid and reborrowed in accordance with the provisions hereof. On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full. The obligations of each Lender hereunder full and the Revolving Credit Commitments shall be several and not jointterminate.
(bc) Each Lender may at its option make any Eurodollar SOFR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided provided, that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).
(id) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan” and collectively, the “Swingline Loans”) to the BorrowerBorrower in Dollars, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(c)(ii2.1(e), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures exceeding the Total Revolving Credit Outstandings at such time exceeding the Maximum Amount Commitment then in effect, effect and (GE) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower Borrower, the Administrative Agent 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 of (x) of rescission of all such notices from the party or parties originally delivering such notice or notice, (y) of the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1 or (z) from the Administrative Agent that such Default or Event of Default is no longer continuing.
(iie) On any Business Day, the The Swingline Lender may, (x) may in its sole discretiondiscretion on any Business Day prior to the tenth Business Day after the date of extension of any Swingline Loan and (y) shall on the tenth Business Day after such extension date (so long as such Swingline Loan remains outstanding), give notice to the Revolving Credit Lenders, with a copy to the Borrower, that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit LoansLoans denominated in Dollars, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the same immediately succeeding Business Day (provided that such notice is given to the Lenders by the Swingline Lender before 1:00 p.m. (New York Time), or otherwise, on the next Business Day) by all Revolving Credit Lenders pro rata based on each such LenderL▇▇▇▇▇’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit 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 to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 7.1 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Revolving Credit Lender hereby unconditionally agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.
(f) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Credit Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit Lender in its capacity as a lender of Swingline Loans hereunder.
(g) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Loans made by such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract