Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to any of the U.S. Borrowers from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $25,000,000, provided that at no time may the sum of the then outstanding Swing Line Loans, U.S. RCF Loans and L/C Obligations exceed the lesser of (1) the U.S. RCF Commitments then in effect and (2) the difference of (I) the U.S. Borrowing Base then in effect (based on the most recently delivered Borrowing Base Certificate) minus (II) the sum of (A) the excess of the unpaid balance of Extensions of Credit made to or for the account of, the Canadian Borrowers over the Canadian Borrowing Base (based on the most recently delivered Borrowing Base Certificate), (B) the aggregate unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers pursuant to the Canadian RC Facility (it being understood and agreed that the U.S. Administrative Agent shall calculate the Dollar Equivalent of the then outstanding Canadian RCF Loans denominated in Canadian Dollars on the date the notice of borrowing of Swing Line Loans is given for purposes of determining compliance with this subsection) and (C) the aggregate unpaid balance of Extensions of Credit to, or for the benefit of, Canadian F▇▇▇▇. Amounts borrowed by any U.S. Borrower under this subsection 2.5 may be repaid and, to but excluding the RCF Maturity Date, reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as ABR Loans and shall not be entitled to be converted into Eurocurrency Loans. The Parent Borrower (on behalf of itself or any other Borrower as the case may be) shall give the Swing Line Lender irrevocable notice (which notice must be received by the Swing Line Lender prior to 12:00 Noon, New York City time, on the requested Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of the requested Swing Line Loan. The proceeds of the Swing Line Loans will be made available by the Swing Line Lender to the Borrower identified in such notice at an office of the Swing Line Lender by crediting the account of such Borrower at such office with such proceeds in Dollars. (b) Each Borrower agrees that, upon the request to the U.S. Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in order to evidence the Swing Line Loans to such Borrower, such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in the form of Exhibit A-4, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “Swing Line Note”), payable to the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of the Swing Line Loans made to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall (i) be dated the Closing Date, (ii) be stated to mature on the RCF Maturity Date and (iii) provide for the payment of interest in accordance with subsection 4.1. (c) The Swing Line Lender, at any time in its sole and absolute discretion may, and, at any time as there shall be a Swing Line Loan outstanding for more than seven Business Days or when an Event of Default under subsection 9(f) has occurred, the Swing Line Lender shall, on behalf of the U.S. Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes such Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) each U.S. RCF Lender, including the Swing Line Lender to make a U.S. RCF Loan as an ABR Loan in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage of the principal amount of all Swing Line Loans made in Dollars (each, a “Mandatory RCF Loan Borrowing”) in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d). Unless the U.S. RCF Commitments shall have expired or terminated (in which event the procedures of paragraph (d) of this subsection 2.4 shall apply), each U.S. RCF Lender hereby agrees to make the proceeds of its U.S. RCF Loan (including any Eurocurrency Loan) available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given notwithstanding (i) that the amount of the Mandatory RCF Loan Borrowing may not comply with the minimum amount for RCF Loans otherwise required hereunder, (ii) whether any conditions specified in subsection 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory RCF Loan Borrowing and (v) the amount of the U.S. RCF Commitment of such, or any other, U.S. RCF Lender at such time. The proceeds of such U.S. RCF Loans shall be immediately applied to repay the Refunded Swing Line Loans. (d) If the U.S. RCF Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, each U.S. RCF Lender shall, at the option of the Swing Line Lender, exercised reasonably, either (i) notwithstanding the expiration or termination of the U.S. RCF Commitments, make a U.S. RCF Loan as an ABR Loan (which U.S. RCF Loan shall be deemed a “U.S. RCF Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in such Swing Line Loans, in either case in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage (determined on the date of, and immediately prior to, expiration or termination of the U.S. RCF Commitments) of the aggregate principal amount of such Swing Line Loans; provided, that in the event that any Mandatory RCF Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any domestic or foreign bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each U.S. RCF Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory RCF Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such U.S. RCF Lenders to share in such Swing Line Loans ratably based upon their respective U.S. RCF Commitment Percentages, provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing U.S. RCF Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory RCF Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to U.S. RCF Loans made as ABR Loans. Each U.S. RCF Lender will make the proceeds of any U.S. RCF Loan made pursuant to the immediately preceding sentence available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the U.S. RCF Commitments expire or terminate, in Dollars. The proceeds of such U.S. RCF Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the U.S. RCF Commitments. In the event that the U.S. RCF Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each U.S. RCF Lender shall immediately transfer to the Swing Line Lender, in immediately available funds and in the currency in which such Swing Line Loans were made, the amount of its participation and upon receipt thereof the Swing Line Lender will deliver to such U.S. RCF Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount. (e) Whenever, at any time after the Swing Line Lender has received from any U.S. RCF Lender such U.S. RCF Lender’s participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof (whether directly from the Parent Borrower or any other Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. RCF Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute such payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such U.S. RCF Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such U.S. RCF Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it. (f) Each U.S. RCF Lender’s obligation to make the U.S. RCF Loans and to purchase participating interests with respect to Swing Line Loans in accordance with subsections 2.5(c) and 2.5(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such U.S. RCF Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other U.S. RCF Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such U.S. RCF Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement (RSC Holdings Inc.)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, from time to time prior to the Revolving Credit Termination Date (i) the Canadian Dollar Swing Line Lender severally (but not jointly) agrees to make swing line loans Canadian Dollar Swing Line Loans to the Canadian Subsidiary Borrowers in Canadian Dollars in an aggregate principal amount not to exceed the Canadian Dollar equivalent of U.S.$15,000,000 at any one time outstanding (each of the foregoing individually, a “Canadian Dollar Swing Line Loan”; collectively, collectively the “Canadian Dollar Swing Line Loans”) ); provided that, after giving effect to the making of any of such Canadian Dollar Swing Line Loans, the U.S. Borrowers from time to time during the Commitment Period in an aggregate principal amount of Swing Line Loans under any Revolving Facility at any one time outstanding shall not to exceed $25,000,000, provided that at no time may U.S.$100,000,000 and the sum of the then outstanding Swing Line Loans, U.S. RCF Loans and L/C Obligations exceed the lesser of (1) the U.S. RCF Commitments then in effect and (2) the difference of (I) the U.S. Borrowing Base then in effect (based on the most recently delivered Borrowing Base Certificate) minus (II) the sum of (A) the excess of the unpaid balance of Aggregate Canadian Revolving Extensions of Credit made to or for the account of, shall not exceed the Canadian Borrowers over the Commitments. All Canadian Borrowing Base (based on the most recently delivered Borrowing Base Certificate), (B) the aggregate unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers pursuant to the Canadian RC Facility (it being understood and agreed that the U.S. Administrative Agent shall calculate the Dollar Equivalent of the then outstanding Canadian RCF Loans denominated in Canadian Dollars on the date the notice of borrowing of Swing Line Loans is given for purposes of determining compliance with this subsection) and (C) the aggregate unpaid balance of Extensions of Credit to, or for the benefit of, Canadian F▇▇▇▇. Amounts borrowed by any U.S. Borrower under this subsection 2.5 may be repaid and, to but excluding the RCF Maturity Date, reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as ABR Loans and shall not be entitled to be converted into Eurocurrency Canadian Dollar Prime Loans. The Parent Borrower (on behalf of itself or any other Borrower as the case may be) relevant Canadian Subsidiary Borrowers shall give the Swing Line Lender Canadian Administrative Agent irrevocable notice (which notice must be received by the Swing Line Lender Canadian Administrative Agent at or prior to 12:00 Noon1:00 P.M., New York City Toronto time, on the requested Borrowing Date Date), specifying (1) the identity of the Borrower and (2) the amount of the each requested Canadian Dollar Swing Line Loan. The proceeds of , which shall be greater than or equal to a minimum amount to be agreed upon by such Canadian Subsidiary Borrowers and the relevant Canadian Dollar Swing Line Loans will be made available by Lender. Upon such notice, the Canadian Administrative Agent shall promptly notify the Canadian Dollar Swing Line Lender to the Borrower identified in such notice at an office of the thereof. The Canadian Dollar Swing Line Lender shall make the amount of each borrowing available to the applicable Canadian Subsidiary Borrowers in the manner directed by crediting the account of such Borrower at such office with such proceeds in DollarsCanadian Administrative Agent on the requested Borrowing Date.
(b) Each Borrower agrees that, upon the request to the U.S. Administrative Agent by the The Canadian Dollar Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in order to evidence the Swing Line Loans to such Borrower, such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in the form of Exhibit A-4, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “Swing Line Note”), payable to the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of the Swing Line Loans made to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall (i) be dated the Closing Date, (ii) be stated to mature on the RCF Maturity Date and (iii) provide for the payment of interest in accordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion discretion, may, and, at any time as there shall be a Swing Line Loan outstanding for more than seven Business Days or when an Event of Default under subsection 9(f) has occurred, the Swing Line Lender shall, on behalf of the U.S. applicable Canadian Subsidiary Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes such the Canadian Dollar Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) each U.S. RCF Canadian Dollar Lender, including the Canadian Dollar Swing Line Lender Lender, with respect to all other Canadian Dollar Swing Line Loans, to make a U.S. RCF Loan as an ABR Loan Canadian Dollar Prime Loan, in an amount equal to such U.S. RCF Canadian Dollar Lender’s U.S. RCF Commitment Revolving Percentage under the Canadian Facility of the principal amount of all Swing Line Loans made in Dollars (each, a “Mandatory RCF Loan Borrowing”) in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage of the principal amount of all of the Canadian Dollar Swing Line Loans (collectively, the “Refunded Canadian Dollar Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d). Unless any of the U.S. RCF Commitments events described in paragraph (f) of Section 8 of the Credit Agreement shall have expired or terminated occurred (in which event the procedures of paragraph (dc) of this subsection 2.4 2.6 shall apply), each U.S. RCF Canadian Dollar Lender hereby agrees to shall make the proceeds of its U.S. RCF Canadian Dollar Prime Loan (including any Eurocurrency Loan) available to the U.S. Canadian Administrative Agent for the account of the Canadian Dollar Swing Line Lender Lender, at the office of the U.S. Canadian Administrative Agent prior to 12:00 Noon, New York City Noon (Toronto time, ) in funds immediately available on the Business Day (Canada) next succeeding the date such notice is given notwithstanding (i) that the amount of the Mandatory RCF Loan Borrowing may not comply with the minimum amount for RCF Loans otherwise required hereunder, (ii) whether any conditions specified in subsection 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory RCF Loan Borrowing and (v) the amount of the U.S. RCF Commitment of such, or any other, U.S. RCF Lender at such timegiven. The proceeds of such U.S. RCF Canadian Dollar Prime Loans shall be immediately applied to repay the Refunded Canadian Dollar Swing Line Loans.
(d) If the U.S. RCF Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, each U.S. RCF Lender shall, at the option of the Swing Line Lender, exercised reasonably, either (i) notwithstanding the expiration or termination of the U.S. RCF Commitments, make a U.S. RCF Loan as an ABR Loan (which U.S. RCF Loan shall be deemed a “U.S. RCF Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in such Swing Line Loans, in either case in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage (determined on the date of, and immediately prior to, expiration or termination of the U.S. RCF Commitments) of the aggregate principal amount of such Swing Line Loans; provided, that in the event that any Mandatory RCF Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any domestic or foreign bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each U.S. RCF Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory RCF Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such U.S. RCF Lenders to share in such Swing Line Loans ratably based upon their respective U.S. RCF Commitment Percentages, provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing U.S. RCF Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory RCF Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to U.S. RCF Loans made as ABR Loans. Each U.S. RCF Lender will make the proceeds of any U.S. RCF Loan made pursuant to the immediately preceding sentence available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the U.S. RCF Commitments expire or terminate, in Dollars. The proceeds of such U.S. RCF Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the U.S. RCF Commitments. In the event that the U.S. RCF Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each U.S. RCF Lender shall immediately transfer to the Swing Line Lender, in immediately available funds and in the currency in which such Swing Line Loans were made, the amount of its participation and upon receipt thereof the Swing Line Lender will deliver to such U.S. RCF Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any U.S. RCF Lender such U.S. RCF Lender’s participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof (whether directly from the Parent Borrower or any other Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. RCF Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute such payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such U.S. RCF Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such U.S. RCF Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it.
(f) Each U.S. RCF Lender’s obligation to make the U.S. RCF Loans and to purchase participating interests with respect to Swing Line Loans in accordance with subsections 2.5(c) and 2.5(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such U.S. RCF Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other U.S. RCF Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such U.S. RCF Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) (i) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to any of the U.S. Borrowers from time to time during the Extending U.S. RCF Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $25,000,000, provided that at no time may the sum of the then outstanding Swing Line Loans, Extending U.S. RCF Loans and Extending U.S. RCF L/C Obligations Obligation Exposure exceed the lesser of (1) the Extending U.S. RCF Commitments then in effect and (2) the difference of (I) the U.S. Borrowing Base then in effect (based on the most recently delivered Borrowing Base Certificate) minus (II) the sum of (A) the aggregate unpaid balance of Extensions of Credit to, or on account of, the U.S. Borrowers under the Non-Extending U.S. RC Facility, (B) the excess of the unpaid balance of Extensions of Credit made to to, or for the account of, the Canadian Borrowers over the Canadian Borrowing Base (based on the most recently delivered Borrowing Base Certificate), (BC) the aggregate unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers pursuant to the Canadian RC Facility Facilities (it being understood and agreed that the U.S. Administrative Agent shall calculate the Dollar Equivalent of the then outstanding Canadian RCF Loans denominated in Canadian Dollars on the date the notice of borrowing of Swing Line Loans is given for purposes of determining compliance with this subsection) and (CD) the aggregate unpaid balance of Extensions of Credit to, or for the benefit of, Canadian F▇▇▇▇▇. Amounts borrowed by any U.S. Borrower under this subsection 2.5 2.4 may be repaid and, to but excluding the Extending RCF Maturity Date, reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as ABR Loans and shall not be entitled to be converted into Eurocurrency Loans. The Parent Borrower (on behalf of itself or any other Borrower as the case may be) shall give the Swing Line Lender irrevocable notice (which notice must be received by the Swing Line Lender prior to 12:00 Noon, New York City time, on the requested Borrowing Date Date) specifying (1) the identity of the Borrower and (2) the amount of the requested Swing Line Loan. The proceeds of the Swing Line Loans will be made available by the Swing Line Lender to the respective Borrower identified in such notice at an office of the Swing Line Lender by crediting the account of such Borrower at such office with such proceeds in Dollars.
(b) Each Borrower agrees that, upon the request to the U.S. Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in order to evidence the Swing Line Loans to such Borrower, such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in the form of Exhibit A-4, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “Swing Line Note”), payable to the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of the Swing Line Loans made to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall (i) be dated the Closing Date, (ii) be stated to mature on the RCF Maturity Date and (iii) provide for the payment of interest in accordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion may, and, at any time as there shall be a Swing Line Loan outstanding for more than seven Business Days or when an Event of Default under subsection 9(f) has occurred, the Swing Line Lender shall, on behalf of the U.S. Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes such Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) each U.S. RCF Lender, including the Swing Line Lender to make a U.S. RCF Loan as an ABR Loan in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage of the principal amount of all Swing Line Loans made in Dollars (each, a “Mandatory RCF Loan Borrowing”) in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d). Unless the U.S. RCF Commitments shall have expired or terminated (in which event the procedures of paragraph (d) of this subsection 2.4 shall apply), each U.S. RCF Lender hereby agrees to make the proceeds of its U.S. RCF Loan (including any Eurocurrency Loan) available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given notwithstanding (i) that the amount of the Mandatory RCF Loan Borrowing may not comply with the minimum amount for RCF Loans otherwise required hereunder, (ii) whether any conditions specified in subsection 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory RCF Loan Borrowing and (v) the amount of the U.S. RCF Commitment of such, or any other, U.S. RCF Lender at such time. The proceeds of such U.S. RCF Loans shall be immediately applied to repay the Refunded Swing Line Loans.
(d) If the U.S. RCF Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, each U.S. RCF Lender shall, at the option of the Swing Line Lender, exercised reasonably, either (i) notwithstanding the expiration or termination of the U.S. RCF Commitments, make a U.S. RCF Loan as an ABR Loan (which U.S. RCF Loan shall be deemed a “U.S. RCF Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in such Swing Line Loans, in either case in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage (determined on the date of, and immediately prior to, expiration or termination of the U.S. RCF Commitments) of the aggregate principal amount of such Swing Line Loans; provided, that in the event that any Mandatory RCF Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any domestic or foreign bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each U.S. RCF Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory RCF Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such U.S. RCF Lenders to share in such Swing Line Loans ratably based upon their respective U.S. RCF Commitment Percentages, provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing U.S. RCF Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory RCF Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to U.S. RCF Loans made as ABR Loans. Each U.S. RCF Lender will make the proceeds of any U.S. RCF Loan made pursuant to the immediately preceding sentence available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the U.S. RCF Commitments expire or terminate, in Dollars. The proceeds of such U.S. RCF Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the U.S. RCF Commitments. In the event that the U.S. RCF Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each U.S. RCF Lender shall immediately transfer to the Swing Line Lender, in immediately available funds and in the currency in which such Swing Line Loans were made, the amount of its participation and upon receipt thereof the Swing Line Lender will deliver to such U.S. RCF Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any U.S. RCF Lender such U.S. RCF Lender’s participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof (whether directly from the Parent Borrower or any other Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. RCF Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute such payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such U.S. RCF Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such U.S. RCF Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it.
(f) Each U.S. RCF Lender’s obligation to make the U.S. RCF Loans and to purchase participating interests with respect to Swing Line Loans in accordance with subsections 2.5(c) and 2.5(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such U.S. RCF Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other U.S. RCF Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such U.S. RCF Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the U.S. Swing Line Lender agrees to make swing line loans (individually, a “U.S. Swing Line Loan”; collectively, the “U.S. Swing Line Loans”) to any of the U.S. Borrowers Borrower from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $25,000,000, 75,000,000; provided that at no time may the sum of U.S. Swing Line Lender shall not make any U.S. Swing Line Loans if, after doing so, the then outstanding Aggregate Tranche A U.S. Facility Lender Exposure would exceed the Aggregate Tranche A U.S. Facility Commitment or the Aggregate Tranche A U.S. Borrower Credit Extensions would exceed the applicable limitation set forth in subsection 2.1(a)(i)(B). Subject to the terms and conditions hereof, the Canadian Swing Line Lender agrees to make swing line loans (individually, a “Canadian Swing Line Loan”; collectively, the “Canadian Swing Line Loans, U.S. RCF Loans and L/C Obligations exceed the lesser of (1”) the U.S. RCF Commitments then in effect and (2) the difference of (I) the U.S. Borrowing Base then in effect (based on the most recently delivered Borrowing Base Certificate) minus (II) the sum of (A) the excess of the unpaid balance of Extensions of Credit made to or for the account of, the Canadian Borrowers over the Canadian Borrowing Base (based on the most recently delivered Borrowing Base Certificate), (B) the aggregate unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers pursuant to the Canadian RC Facility (it being understood and agreed that Borrower from time to time during the U.S. Administrative Agent shall calculate Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Dollar Equivalent of $15,000,000; provided that the then outstanding Canadian RCF Loans denominated in Swing Line Lender shall not make any Canadian Dollars on the date the notice of borrowing of Swing Line Loans is given for purposes of determining compliance with this subsection) and if, after doing so, (Ci) the aggregate unpaid balance of Aggregate Tranche A Canadian Facility Lender Exposure would exceed the Aggregate Tranche A Canadian Facility Commitment or (ii) the Aggregate Tranche A Canadian Borrower Credit Extensions of Credit to, or for would exceed the benefit of, Canadian F▇▇▇▇applicable limitation set forth in subsection 2.1(b)(i)(B). Amounts borrowed by any U.S. Borrower under this subsection 2.5 2.4 may be repaid and, to through but excluding the RCF Maturity Date, reborrowed. All Swing Line Loans (x) made to any U.S. Borrower shall be made in Dollars and (y) made to Canadian Borrower shall be made in Canadian Dollars or in Dollars as ABR Loans and and. Swing Line Loans shall not be entitled to be converted into Eurocurrency Loans. The Parent or BA Equivalent Loans. In the case of U.S. Swing Line Loans, the Borrower Representative (on behalf of itself or any other Borrower as the case may beU.S. Borrower) shall give the U.S. Swing Line Lender irrevocable notice (which notice must be received by the U.S. Swing Line Lender prior to 12:00 Noon3:00 P.M., New York City time, ) on the requested Borrowing Date specifying (1) the identity of the U.S. Borrower and (2) the amount of the requested U.S. Swing Line Loan, which shall be in a minimum amount of $100,000.00 or whole multiples of $50,000.00 in excess thereof. The TheIn the case of Canadian Swing Line Loans, the Borrower Representative (on behalf of the Canadian Borrower) shall give the Canadian Swing Line Lender irrevocable notice (which notice must be received by the Canadian Swing Line Lender prior to 12:30 P.M., New York City time) on the requested Borrowing Date specifying the amount of the requested Canadian Swing Line Loan, which shall be in a minimum amount of $100,000.00 or whole multiples of $50,000.00 in excess thereof (or, in the case of Canadian Swing Line Loans denominated in Canadian Dollars, a minimum amount of Cdn$100,000.00 or whole multiples of Cdn$50,000.00 in excess thereof). In each case, the proceeds of the Swing Line Loans Loan will be made available by the applicable Swing Line Lender to the U.S. Borrower identified in such notice at an office of the applicable Swing Line Lender by crediting wire transfer to the account of such U.S. Borrower at specified in such office with such proceeds in Dollarsnotice.
(b) Each Borrower of the U.S. Borrowers agrees that, upon the request to the U.S. Administrative Agent by the U.S. Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in order to evidence the U.S. Swing Line Loans to such Borrower, such Borrower will execute and deliver to the U.S. Swing Line Lender a promissory note substantially in the form of Exhibit A-4I-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “U.S. Swing Line Note”), payable to the U.S. Swing Line Lender and representing the obligation of such Borrower to pay the amount of the U.S. Swing Line Commitment or, if less, the unpaid principal amount of the U.S. Swing Line Loans made to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing LineCanadian Borrower agrees that, upon the request to the Administrative Agent by the Canadian Swing Line Lender made on or prior to the First Amendment Effective Date or in connection with any assignment pursuant to subsection 11.6(b), in order to evidence the Canadian Swing Line Loans the Canadian Borrower will execute and deliver to the Canadian Swing Line Lender a promissory note substantially in the form of Exhibit I-3, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “Canadian Swing Line Note”), payable to the Canadian Swing Line Lender and representing the obligation of the Canadian Borrower to pay the amount of the Canadian Swing Line Commitment or, if less, the unpaid principal amount of the Canadian Swing Line Loans made to the Canadian Borrower, with interest thereon as prescribed in subsection 4.1. Each Swing Line Note shall (i) be dated the Closing Date, (ii) be stated to mature on the RCF Maturity Date and (iii) provide for the payment of interest in accordance with subsection 4.1.
(c) The TheEach Swing Line Lender, at any time in its sole and absolute discretion discretion, may, and, at any time as there shall be a Swing Line Loan outstanding for more than seven five Business Days or when an Event of Default under subsection 9(f) has occurredDays, the theeach Swing Line Lender shall, on behalf of the U.S. Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes such the applicable Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) (1) in the case of a U.S. Swing Line Loan, each Tranche A U.S. RCF Facility Lender, including the U.S. Swing Line Lender Lender, to make a Tranche A U.S. RCF Facility Revolving Credit Loan as an ABR Loan in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage of the principal amount of all Swing Line Loans made in Dollars (each, a “Mandatory RCF U.S. Revolving Loan Borrowing”) in an amount equal to such Tranche A U.S. RCF Facility Lender’s Tranche A U.S. RCF Facility Commitment Percentage of the principal amount of all of the U.S. Swing Line Loans (collectively, the “Refunded U.S. Swing Line Loans”) outstanding on the date such notice is given or (2) in the case of a Canadian Swing Line Loan, each Tranche A Canadian Facility Lender, including the Canadian Swing Line Lender, to make a Tranche A Canadian Facility Revolving Credit Loan as an ABR Loan (a “Mandatory Canadian Revolving Loan Borrowing”) in an amount equal to such Tranche A Canadian Facility Lender’s Tranche A Canadian Facility Commitment Percentage of the principal amount of all of the Canadian Swing Line Loans (collectively, the “Refunded Canadian Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection 2.4(c) shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d4.4(b). Unless the Tranche A U.S. RCF Facility Commitments shall have expired or terminated (in which event the procedures of paragraph (d) of this subsection 2.4 shall apply), each Tranche A U.S. RCF Facility Lender hereby agrees to make the proceeds of its Tranche A U.S. RCF Facility Revolving Credit Loan (including any Eurocurrency Loan) available to the U.S. Administrative Agent for the account of the U.S. Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given notwithstanding (i) that the amount of the Mandatory RCF U.S. Revolving Loan Borrowing may not comply with the minimum amount for RCF Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in subsection 6.2 Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory RCF U.S. Revolving Loan Borrowing and (v) the amount of the Tranche A U.S. RCF Facility Commitment of such, or any other, Tranche A U.S. RCF Facility Lender at such time. The proceeds of such Tranche A U.S. RCF Facility Revolving Credit Loans (including, any Eurocurrency Loan) shall be immediately applied to repay the Refunded U.S. Swing Line Loans. Unless the Tranche A Canadian Facility Commitments shall have expired or terminated (in which event the procedures of paragraph (d) of this subsection 2.4 shall apply), each Tranche A Canadian Facility Lender hereby agrees to make the proceeds of its Tranche A Canadian Facility Revolving Credit Loan available to the Administrative Agent for the account of the Canadian Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given notwithstanding (i) that the amount of the Mandatory Canadian Revolving Loan Borrowing may not comply with the minimum amount for Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Canadian Revolving Loan Borrowing and (v) the amount of the Tranche A Canadian Facility Commitment of such, or any other, Tranche A Canadian Facility Lender at such time. The proceeds of such Tranche A Canadian Facility Revolving Credit Loans (including, any BA Equivalent Loan) shall be immediately applied to repay the Refunded Canadian Swing Line Loans.
(d) (i) If the Tranche A U.S. RCF Facility Commitments shall expire or terminate at any time while U.S. Swing Line Loans are outstanding, each Tranche A U.S. RCF Facility Lender shall, at the option of the U.S. Swing Line Lender, exercised reasonably, either (iiA) notwithstanding the expiration or termination of the Tranche A U.S. RCF Facility Commitments, make a Tranche A U.S. RCF Facility Revolving Credit Loan as an ABR Loan (which Tranche A U.S. RCF Facility Revolving Credit Loan shall be deemed a “Tranche A U.S. RCF Facility Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents) or (iiiiB) purchase an undivided participating interest in such U.S. Swing Line Loans, in either case in an amount equal to such Tranche A U.S. RCF Facility Lender’s Tranche A U.S. RCF Facility Commitment Percentage (determined on the date of, and immediately prior to, expiration or termination of the Tranche A U.S. RCF Commitments) Facility Commitments of the aggregate principal amount of such U.S. Swing Line Loans; providedprovided that, that in the event that any Mandatory RCF U.S. Revolving Loan Borrowing cannot for any reason be made on the date otherwise required above (including including, as a result of the commencement of a proceeding under any domestic or foreign bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each Tranche A U.S. RCF Facility Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory RCF U.S. Revolving Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the U.S. Swing Line Lender such participations in such outstanding U.S. Swing Line Loans as shall be necessary to cause such Tranche A U.S. RCF Facility Lenders to share in such U.S. Swing Line Loans ratably based upon their respective Tranche A U.S. RCF Facility Commitment Percentages, ; provided, further, that (x) all interest payable on the U.S. Swing Line Loans shall be for the account of the U.S. Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Tranche A U.S. RCF Facility Lender shall be required to pay the U.S. Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory RCF U.S. Revolving Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Tranche A U.S. RCF Facility Revolving Credit Loans made as ABR Loans. In the event that the Tranche A U.S. Facility Commitments shall expire or terminate in part (and not in full) at any time while U.S. Swing Line Loans are outstanding, the applicable Borrower shall repay U.S. Swing Line Loans in the amount by which the outstanding U.S. Swing Line Loans exceed the continuing Tranche A U.S. Facility Commitments; and in the event that such Borrower fails to do so, the obligations of each Tranche A U.S. Facility Lender pursuant to the prior sentence shall apply with respect to such Lender’s Tranche A U.S. Facility Commitment Percentage (calculated immediately prior to such expiration or termination) of the amount by which the outstanding U.S. Swing Line Loans in excess of the continuing Tranche A U.S. Facility Commitments not so repaid. Each Tranche A U.S. RCF Facility Lender will make the proceeds of any Tranche A U.S. RCF Facility Revolving Credit Loan made pursuant to the immediately preceding sentence available to the U.S. Administrative Agent for the account of the U.S. Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Tranche A U.S. RCF Facility Commitments expire or terminate, terminate and in Dollarsthe currency in which such U.S. Swing Line Loans were made. The proceeds of such Tranche A U.S. RCF Facility Revolving Credit Loans shall be immediately applied to repay the U.S. Swing Line Loans outstanding on the date of termination or expiration of the Tranche A U.S. RCF Facility Commitments. In the event that the Tranche A U.S. RCF Facility Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (dd)(i), each Tranche A U.S. RCF Facility Lender shall immediately transfer to the U.S. Swing Line Lender, in immediately available funds and in the currency in which such U.S. Swing Line Loans were made, the amount of its participation and upon receipt thereof the U.S. Swing Line Lender will deliver to such Tranche A U.S. RCF Facility Lender a U.S. Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any U.S. RCF Lender such U.S. RCF Lender’s participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof (whether directly from the Parent Borrower or any other Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. RCF Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute such payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such U.S. RCF Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such U.S. RCF Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it.
(f) Each U.S. RCF Lender’s obligation to make the U.S. RCF Loans and to purchase participating interests with respect to Swing Line Loans in accordance with subsections 2.5(c) and 2.5(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such U.S. RCF Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other U.S. RCF Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such U.S. RCF Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Abl Credit Agreement (Veritiv Corp)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to any of the U.S. Borrowers from time to time during the RCF Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $25,000,000, provided that at no time may the sum of the then outstanding Swing Line Loans, U.S. RCF Loans and U.S. RCF L/C Obligations exceed the lesser of (1) the Total U.S. RCF Commitments Commitment then in effect and (2) the difference of (I) the U.S. Borrowing Base then in effect (based on the most recently delivered Borrowing Base Certificate) minus (II) the sum of (A) the excess of the unpaid balance of Extensions of Credit made to to, or for the account of, the Canadian Borrowers over the Canadian Borrowing Base (based on the most recently delivered Borrowing Base Certificate), (B) the aggregate unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers pursuant to the Canadian RC Facility (it being understood and agreed that the U.S. Administrative Agent shall calculate the Dollar Equivalent of the then outstanding Canadian RCF Loans denominated in Canadian Dollars on the date the notice of borrowing of Swing Line Loans is given for purposes of determining compliance with this subsection), (B) the aggregate unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers pursuant to the Canadian RC Facility and (C) the aggregate unpaid balance of Extensions of Credit to, or for the benefit of, Canadian F▇▇▇▇▇. Amounts borrowed by any U.S. Borrower under this subsection 2.5 2.4 may be repaid and, to but excluding the Original RCF Maturity DateDate (or, with respect to Swing Line Loans outstanding pursuant to an Extended U.S. RCF Commitment (after giving effect to subsection 2.5(g)), the Maturity Date applicable thereto), reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as ABR Loans and shall not be entitled to be converted into Eurocurrency Loans. The Parent Borrower (on behalf of itself or any other Borrower as the case may be) shall give the Swing Line Lender irrevocable notice (which notice must be received by the Swing Line Lender prior to 12:00 Noon, New York City time, on the requested Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of the requested Swing Line Loan. The proceeds of the Swing Line Loans will be made available by the Swing Line Lender to the respective Borrower identified in such notice at an office of the Swing Line Lender by crediting the account of such Borrower at such office with such proceeds in Dollars.
(b) Each Borrower agrees that, upon the request to the U.S. Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b)Date, in order to evidence the Swing Line Loans to such Borrower, such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in the form of Exhibit A-4A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “Swing Line Note”), payable to the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of the Swing Line Loans made to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall (i) be dated the Closing Date, (ii) be stated to mature on the Original RCF Maturity Date and (iii) provide for the payment of interest in accordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion may, and, at any time as there shall be a Swing Line Loan outstanding for more than seven (7) Business Days or when an Event of Default under subsection 9(f) has occurred, the Swing Line Lender shall, on behalf of the U.S. Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes such Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) each U.S. RCF Lender, including the Swing Line Lender Lender, to make a U.S. RCF Loan as an ABR Loan in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage of the principal amount of all Swing Line Loans outstanding on the date such notice is given (collectively, the “Refunded Swing Line Loans”) made in Dollars (each, a “Mandatory RCF Loan Borrowing”) in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given); provided that the provisions of this subsection shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d). Unless the U.S. RCF Commitments shall have expired or terminated (in which event the procedures of paragraph (d) of this subsection 2.4 shall apply), each U.S. RCF Lender hereby agrees to make the proceeds of its U.S. RCF Loan (including any Eurocurrency Loan) available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given notwithstanding (i) that the amount of the Mandatory RCF Loan Borrowing may not comply with the minimum amount for RCF Loans otherwise required hereunder, (ii) whether any conditions specified in subsection 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory RCF Loan Borrowing and (v) the amount of the U.S. RCF Commitment of such, or any other, U.S. RCF Lender at such time. The proceeds of such U.S. RCF Loans shall be immediately applied to repay the Refunded Swing Line Loans.
(d) If the U.S. RCF Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, each U.S. RCF Lender shall, at the option of the Swing Line Lender, exercised reasonably, either (i) notwithstanding the expiration or termination of the U.S. RCF Commitments, make a U.S. RCF Loan as an ABR Loan (which U.S. RCF Loan shall be deemed a “U.S. RCF Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in such Swing Line Loans, in either case in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage (determined on the date of, and immediately prior to, expiration or termination of the U.S. RCF Commitments) of the aggregate principal amount of such Swing Line Loans; provided, provided that in the event that any Mandatory RCF Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any domestic or foreign bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each U.S. RCF Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory RCF Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such U.S. RCF Lenders to share in such Swing Line Loans ratably based upon their respective U.S. RCF Commitment Percentages, provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing U.S. RCF Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory RCF Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to U.S. RCF Loans made as ABR LoansLoans hereunder for each day thereafter. Each U.S. RCF Lender will make the proceeds of any U.S. RCF Loan made pursuant to the immediately preceding sentence available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the U.S. RCF Commitments expire or terminate, in Dollars. The proceeds of such U.S. RCF Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the U.S. RCF Commitments. In the event that the U.S. RCF Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each U.S. RCF Lender shall immediately transfer to the Swing Line Lender, in immediately available funds and in the currency in which such Swing Line Loans were made, the amount of its participation and upon receipt thereof the Swing Line Lender will deliver to such U.S. RCF Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any U.S. RCF Lender such U.S. RCF Lender’s participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof (whether directly from the Parent Borrower or any other Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. RCF Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute such payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such U.S. RCF Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such U.S. RCF Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it.
(f) Each U.S. RCF Lender’s obligation to make the U.S. RCF Loans and to purchase participating interests with respect to Swing Line Loans in accordance with subsections 2.5(c2.4(c) and 2.5(d2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such U.S. RCF Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other U.S. RCF Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such U.S. RCF Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line Loans”) to any of the U.S. Borrowers from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $25,000,000100,000,000, provided that at no time may such Swing Line Loan cause the sum of the then outstanding Swing Line Loans, U.S. RCF Facility Revolving Credit Loans (including in the case of U.S. Facility Revolving Credit Loans then outstanding in any Designated Foreign Currency, the Dollar Equivalent of the aggregate principal amount thereof) and L/C Obligations exceed the lesser of (1) the U.S. RCF Facility Commitments then in effect and (2) the difference of (I) the U.S. Borrowing Base then in effect (based on the most recently delivered recent Borrowing Base Certificate) minus (II) the sum of (A) if greater than zero, the excess of the unpaid balance of Extensions of Credit made to or for the account of, the Canadian Borrowers over the Canadian Borrowing Base (based on the most recently delivered recent Borrowing Base Certificate), (B) the aggregate unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers pursuant to the Canadian RC Facility (it being understood and agreed that the U.S. Administrative Agent shall calculate the Dollar Equivalent of the then outstanding Canadian RCF Revolving Credit Loans denominated in Canadian Dollars any Designated Foreign Currency on the date the notice of borrowing of Swing Line Loans is given for purposes of determining compliance with this subsection) and (C) the aggregate unpaid balance of Extensions of Credit to, or for the benefit of, Canadian F▇▇▇▇Section 2.4). Amounts borrowed by any U.S. Borrower under this subsection 2.5 Section 2.4 may be repaid and, to through but excluding the RCF Maturity Termination Date, reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as ABR Loans and shall not be entitled to be converted into Eurocurrency Loans. The Parent Borrower (on behalf of itself or any other Borrower as the case may be) shall give the Swing Line Lender irrevocable notice (which notice must be received by the Swing Line Lender prior to 12:00 Noon, New York City time, ) on the requested Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of the requested Swing Line Loan. The proceeds of the Swing Line Loans will be made available by the Swing Line Lender to the Borrower identified in such notice at an office of the Swing Line Lender by crediting the account of such Borrower at such office with such proceeds in Dollars.
(b) Each The Parent Borrower agrees that, upon the request to the U.S. Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection Section 11.6(b), in order to evidence the Swing Line Loans to such Borrower, such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in the form of Exhibit A-4A-2, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “Swing Line Note”), payable to the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of the Swing Line Loans made to such Borrower, with interest thereon as prescribed in subsection Section 4.1. The Swing Line Note shall (i) be dated the Closing Date, (ii) be stated to mature on the RCF Maturity Termination Date and (iii) provide for the payment of interest in accordance with subsection Section 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion may, and, at any time as there shall be a Swing Line Loan outstanding for more than seven Business Days or when an Event of Default under subsection 9(f) has occurredDays, the Swing Line Lender shall, on behalf of the U.S. Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes such Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection Section 9(f)) each U.S. RCF Facility Lender, including the Swing Line Lender to make a U.S. RCF Facility Revolving Credit Loan as an ABR Loan in an amount equal to such U.S. RCF Facility Lender’s U.S. RCF Facility Commitment Percentage of the principal amount of all Swing Line Loans made in Dollars (each, a “Mandatory RCF Revolving Credit Loan Borrowing”) in an amount equal to such U.S. RCF Facility Lender’s U.S. RCF Facility Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection Section 2.4 shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection Section 4.4(d). Unless the U.S. RCF Facility Commitments shall have expired or terminated (in which event the procedures of paragraph (d) of this subsection Section 2.4 shall apply), each U.S. RCF Facility Lender hereby agrees to make the proceeds of its U.S. RCF Facility Revolving Credit Loan (including any Eurocurrency Loan) available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given notwithstanding (i) that the amount of the Mandatory RCF Revolving Credit Loan Borrowing may not comply with the minimum amount for RCF Revolving Credit Loans otherwise required hereunder, (ii) whether any conditions specified in subsection 6.2 Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory RCF Revolving Credit Loan Borrowing and (v) the amount of the U.S. RCF Facility Commitment of such, or any other, U.S. RCF Facility Lender at such time. The proceeds of such U.S. RCF Facility Revolving Credit Loans (including any Eurocurrency Loan) shall be immediately applied to repay the Refunded Swing Line Loans.
(d) If the U.S. RCF Facility Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, each U.S. RCF Facility Lender shall, at the option of the Swing Line Lender, exercised reasonably, either (i) notwithstanding the expiration or termination of the U.S. RCF Facility Commitments, make a U.S. RCF Facility Revolving Credit Loan as an ABR Loan (which U.S. RCF Facility Revolving Credit Loan shall be deemed a “U.S. RCF Facility Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in such Swing Line Loans, in either case in an amount equal to such U.S. RCF Facility Lender’s U.S. RCF Facility Commitment Percentage (determined on the date of, and immediately prior to, expiration or termination of the U.S. RCF Commitments) Facility Commitments of the aggregate principal amount of such Swing Line Loans; provided, that in the event that any Mandatory RCF Revolving Credit Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any domestic or foreign bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each U.S. RCF Facility Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory RCF Revolving Credit Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such U.S. RCF Facility Lenders to share in such Swing Line Loans ratably based upon their respective U.S. RCF Facility Commitment Percentages, provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing U.S. RCF Facility Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory RCF Revolving Credit Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to U.S. RCF Facility Revolving Credit Loans made as ABR Loans. Each U.S. RCF Facility Lender will make the proceeds of any U.S. RCF Facility Revolving Credit Loan made pursuant to the immediately preceding sentence available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the U.S. RCF Facility Commitments expire or terminate, terminate and in Dollarsthe currency in which such Swing Line Loans were made. The proceeds of such U.S. RCF Facility Revolving Credit Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the U.S. RCF Facility Commitments. In the event that the U.S. RCF Facility Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each U.S. RCF Facility Lender shall immediately transfer to the Swing Line Lender, in immediately available funds and in the currency in which such Swing Line Loans were made, the amount of its participation and upon receipt thereof the Swing Line Lender will deliver to such U.S. RCF Facility Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any U.S. RCF Facility Lender such U.S. RCF Facility Lender’s participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof (whether directly from the Parent Borrower or any other Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. RCF Facility Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute such payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such U.S. RCF Facility Lender’s participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such U.S. RCF Facility Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it.
(f) Each U.S. RCF Facility Lender’s obligation to make the U.S. RCF Facility Revolving Credit Loans and to purchase participating interests with respect to Swing Line Loans in accordance with subsections 2.5(cSections 2.4(c) and 2.5(d2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such U.S. RCF Facility Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other U.S. RCF Facility Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such U.S. RCF Facility Revolving Credit Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(g) Notwithstanding anything to the contrary contained in this Agreement, in the event there is a Defaulting Lender, then the Individual Swingline Exposure of such Defaulting Lender will automatically be reallocated among the U.S. Facility Lenders that are Non-Defaulting Lenders pro rata in accordance with such Non-Defaulting Lenders’ respective U.S. Facility Commitment Percentages (calculated without regard to the Commitment of the Defaulting Lender) but only to the extent that such reallocation does not cause the Individual Lender Exposure of any Non-Defaulting Lender to exceed the Commitment of such Non-Defaulting Lender. If such reallocation cannot, or can only partially, be effected, the U.S. Borrowers shall, upon one Business Day’s written notice from the Administrative Agent, prepay such Defaulting Lender’s U.S. Facility Commitment Percentage (calculated as in effect immediately prior to it becoming a Defaulting Lender) of any Swing Line Loans (after giving effect to any partial reallocation pursuant to the first sentence of this Section 2.4(g)). So long as there is a Defaulting Lender, the Swing Line Lender shall not be obligated to make a Swing Line Loan to the extent that the sum of the Individual U.S. Facility Lender Exposure of the Non-Defaulting Lenders after giving effect to such Swing Line Loan would exceed the aggregate U.S. Facility Commitments of such Non-Defaulting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Herc Holdings Inc)
Swing Line Commitments. (a) Subject to the terms and conditions hereof, from time to time prior to the Revolving Credit Termination Date (i) the Canadian Dollar Swing Line Lender severally (but not jointly) agrees to make swing line loans Canadian Dollar Swing Line Loans to the Canadian Subsidiary Borrowers in Canadian Dollars in an aggregate principal amount not to exceed the Canadian Dollar equivalent of U.S.$15,000,000 at any one time outstanding (each of the foregoing individually, a “Canadian Dollar Swing Line Loan”; collectively, collectively the “Canadian Dollar Swing Line Loans”) ); provided that, after giving effect to the making of any of such Canadian Dollar Swing Line Loans, the U.S. Borrowers from time to time during the Commitment Period in an aggregate principal amount of Swing Line Loans under any Revolving Facility at any one time outstanding shall not to exceed $25,000,000, provided that at no time may U.S.$100,000,000 and the sum of the then outstanding Swing Line Loans, U.S. RCF Loans and L/C Obligations exceed the lesser of (1) the U.S. RCF Commitments then in effect and (2) the difference of (I) the U.S. Borrowing Base then in effect (based on the most recently delivered Borrowing Base Certificate) minus (II) the sum of (A) the excess of the unpaid balance of Aggregate Canadian Revolving Extensions of Credit made to or for the account of, shall not exceed the Canadian Borrowers over the Commitments. All Canadian Borrowing Base (based on the most recently delivered Borrowing Base Certificate), (B) the aggregate unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers pursuant to the Canadian RC Facility (it being understood and agreed that the U.S. Administrative Agent shall calculate the Dollar Equivalent of the then outstanding Canadian RCF Loans denominated in Canadian Dollars on the date the notice of borrowing of Swing Line Loans is given for purposes of determining compliance with this subsection) and (C) the aggregate unpaid balance of Extensions of Credit to, or for the benefit of, Canadian F▇▇▇▇. Amounts borrowed by any U.S. Borrower under this subsection 2.5 may be repaid and, to but excluding the RCF Maturity Date, reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as ABR Loans and shall not be entitled to be converted into Eurocurrency Canadian Dollar Prime Loans. The Parent Borrower (on behalf of itself or any other Borrower as the case may be) relevant Canadian Subsidiary Borrowers shall give the Swing Line Lender Canadian Administrative Agent irrevocable notice (which notice must be received by the Swing Line Lender Canadian Administrative Agent at or prior to 12:00 Noon1:00 P.M., New York City Toronto time, on the requested Borrowing Date Date), specifying (1) the identity of the Borrower and (2) the amount of the each requested Canadian Dollar Swing Line Loan. The proceeds of , which shall be greater than or equal to a minimum amount to be agreed upon by such Canadian Subsidiary Borrowers and the relevant Canadian Dollar Swing Line Loans will be made available by Lender. Upon such notice, the Canadian Administrative Agent shall promptly notify the Canadian Dollar Swing Line Lender to the Borrower identified in such notice at an office of the thereof. The Canadian Dollar Swing Line Lender shall make the amount of each borrowing available to the applicable Canadian Subsidiary Borrowers in the manner directed by crediting the account of such Borrower at such office with such proceeds in DollarsCanadian Administrative Agent on the requested Borrowing Date.
(b) Each Borrower agrees that, upon the request to the U.S. Administrative Agent by the The Canadian Dollar Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in order to evidence the Swing Line Loans to such Borrower, such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in the form of Exhibit A-4, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “Swing Line Note”), payable to the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of the Swing Line Loans made to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall (i) be dated the Closing Date, (ii) be stated to mature on the RCF Maturity Date and (iii) provide for the payment of interest in accordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion discretion, may, and, at any time as there shall be a Swing Line Loan outstanding for more than seven Business Days or when an Event of Default under subsection 9(f) has occurred, the Swing Line Lender shall, on behalf of the U.S. applicable Canadian Subsidiary Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes such the Canadian Dollar Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) each U.S. RCF Canadian Dollar Lender, including the Canadian Dollar Swing Line Lender Lender, with respect to all other Canadian Dollar Swing Line Loans, to make a U.S. RCF Loan as an ABR Loan Canadian Dollar Prime Loan, in an amount equal to such U.S. RCF Canadian Dollar Lender’s U.S. RCF Commitment Revolving Percentage under the Canadian Facility of the principal amount of all Swing Line Loans made in Dollars (each, a “Mandatory RCF Loan Borrowing”) in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment Percentage of the principal amount of all of the Canadian Dollar Swing Line Loans (collectively, the “Refunded Canadian Dollar Swing Line Loans”) outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d). Unless any of the U.S. RCF Commitments events described in paragraph (f) of Section 8 of the Credit Agreement shall have expired or terminated occurred (in which event the procedures of paragraph (dc) of this subsection 2.4 2.6 shall apply), each U.S. RCF Canadian Dollar Lender hereby agrees to shall make the proceeds of its U.S. RCF Canadian Dollar Prime Loan (including any Eurocurrency Loan) available to the U.S. Canadian Administrative Agent for the account of the Canadian Dollar Swing Line Lender Lender, at the office of the U.S. Canadian Administrative Agent prior to 12:00 Noon, New York City Noon (Toronto time, ) in funds immediately available on the Business Day (Canada) next succeeding the date such notice is given notwithstanding (i) that the amount of the Mandatory RCF Loan Borrowing may not comply with the minimum amount for RCF Loans otherwise required hereunder, (ii) whether any conditions specified in subsection 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory RCF Loan Borrowing and (v) the amount of the U.S. RCF Commitment of such, or any other, U.S. RCF Lender at such timegiven. The proceeds of such U.S. RCF Canadian Dollar Prime Loans shall be immediately applied to repay the Refunded Canadian Dollar Swing Line Loans.
(dc) If If, prior to the U.S. RCF Commitments shall expire or terminate at any time while making of a Canadian Swing Line Loans are outstandingLoan pursuant to paragraph (b) of subsection 2.6, one of the events described in paragraph (f) of Section 8 of the Credit Agreement shall have occurred, each U.S. RCF Canadian Dollar Lender shallhereby agrees to and will, at on the option of the date such Canadian Swing Line LenderLoan was to have been made, exercised reasonably, either (i) notwithstanding the expiration or termination of the U.S. RCF Commitments, make a U.S. RCF Loan as an ABR Loan (which U.S. RCF Loan shall be deemed a “U.S. RCF Loan” for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in such each Refunded Canadian Dollar Swing Line Loans, in either case Loan in an amount equal to such U.S. RCF Lender’s U.S. RCF Commitment its Revolving Percentage (determined on under the date of, and immediately prior to, expiration or termination of the U.S. RCF Commitments) of the aggregate principal amount Canadian Facility of such Refunded Canadian Dollar Swing Line Loans; provided, that in the event that any Mandatory RCF Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any domestic or foreign bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each U.S. RCF Loan. Such Revolving Credit Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory RCF Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such U.S. RCF Lenders to share in such Swing Line Loans ratably based upon their respective U.S. RCF Commitment Percentages, provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, will immediately transfer to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing U.S. RCF Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory RCF Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to U.S. RCF Loans made as ABR Loans. Each U.S. RCF Lender will make the proceeds of any U.S. RCF Loan made pursuant to the immediately preceding sentence available to the U.S. Canadian Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the U.S. RCF Commitments expire or terminate, in Dollars. The proceeds of such U.S. RCF Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the U.S. RCF Commitments. In the event that the U.S. RCF Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each U.S. RCF Lender shall immediately transfer to the Canadian Dollar Swing Line Lender, in immediately available funds and in the currency in which such Swing Line Loans were made, of the amount of its participation and participations and, upon its receipt thereof of its ratable share thereof, the Canadian Dollar Swing Line Lender will deliver to such U.S. RCF Canadian Dollar Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(ed) Whenever, at any time after the Canadian Dollar Swing Line Lender has received from any U.S. RCF Canadian Dollar Lender such U.S. RCF Canadian Dollar Lender’s participating interest in a Refunded Canadian Dollar Swing Line Loan, Loan and the Canadian Dollar Swing Line Lender receives any payment on account thereof (whether directly from the Parent Borrower or any other Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. RCF Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Canadian Dollar Swing Line Lender will distribute to such payment on Canadian Dollar Lender through the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such U.S. RCF Lender’s Canadian Administrative Agent its participating interest was outstanding and funded)interest; provided, however, that in the event that such payment received by the Canadian Dollar Swing Line Lender is required to be returned, such U.S. RCF Canadian Dollar Lender will return to the Canadian Dollar Swing Line Lender through the Canadian Administrative Agent any portion thereof previously distributed by the Canadian Dollar Swing Line Lender to it.
(f) Each U.S. RCF Lender’s obligation to make the U.S. RCF Loans and to purchase participating interests with respect to Swing Line Loans in accordance with subsections 2.5(c) and 2.5(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such U.S. RCF Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other U.S. RCF Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such U.S. RCF Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (individually, a “"Swing Line Loan”"; collectively, the “"Swing Line Loans”") to any of the U.S. Borrowers from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $25,000,000, provided that at no time may the sum of the then outstanding Swing Line Loans, U.S. RCF Loans and L/C Obligations exceed the lesser of (1) the U.S. RCF Commitments then in effect and (2) the difference of (I) the U.S. Borrowing Base then in effect (based on the most recently delivered Borrowing Base Certificate) minus (II) the sum of (A) the excess of the unpaid balance of Extensions of Credit made to or for the account of, the Canadian Borrowers over the Canadian Borrowing Base (based on the most recently delivered Borrowing Base Certificate), (B) the aggregate unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers pursuant to the Canadian RC Facility (it being understood and agreed that the U.S. Administrative Agent shall calculate the Dollar Equivalent of the then outstanding Canadian RCF Loans denominated in Canadian Dollars on the date the notice of borrowing of Swing Line Loans is given for purposes of determining compliance with this subsection) and (C) the aggregate unpaid balance of Extensions of Credit to, or for the benefit of, Canadian F▇▇▇▇▇. Amounts borrowed by any U.S. Borrower under this subsection 2.5 may be repaid and, to but excluding the RCF Maturity Date, reborrowed. All Swing Line Loans made to any U.S. Borrower shall be made in Dollars as ABR Loans and shall not be entitled to be converted into Eurocurrency Loans. The Parent Borrower (on behalf of itself or any other Borrower as the case may be) shall give the Swing Line Lender irrevocable notice (which notice must be received by the Swing Line Lender prior to 12:00 Noon, New York City time, on the requested Borrowing Date specifying (1) the identity of the Borrower and (2) the amount of the requested Swing Line Loan. The proceeds of the Swing Line Loans will be made available by the Swing Line Lender to the Borrower identified in such notice at an office of the Swing Line Lender by crediting the account of such Borrower at such office with such proceeds in Dollars.
(b) Each Borrower agrees that, upon the request to the U.S. Administrative Agent by the Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6(b), in order to evidence the Swing Line Loans to such Borrower, such Borrower will execute and deliver to the Swing Line Lender a promissory note substantially in the form of Exhibit A-4, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the “"Swing Line Note”"), payable to the Swing Line Lender and representing the obligation of such Borrower to pay the amount of the Swing Line Commitment or, if less, the unpaid principal amount of the Swing Line Loans made to such Borrower, with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall (i) be dated the Closing Date, (ii) be stated to mature on the RCF Maturity Date and (iii) provide for the payment of interest in accordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute discretion may, and, at any time as there shall be a Swing Line Loan outstanding for more than seven Business Days or when an Event of Default under subsection 9(f) has occurred, the Swing Line Lender shall, on behalf of the U.S. Borrower to which the Swing Line Loan has been made (which hereby irrevocably directs and authorizes such Swing Line Lender to act on its behalf), request (provided that such request shall be deemed to have been automatically made upon the occurrence of an Event of Default under subsection 9(f)) each U.S. RCF Lender, including the Swing Line Lender to make a U.S. RCF Loan as an ABR Loan in an amount equal to such U.S. RCF Lender’s 's U.S. RCF Commitment Percentage of the principal amount of all Swing Line Loans made in Dollars (each, a “"Mandatory RCF Loan Borrowing”") in an amount equal to such U.S. RCF Lender’s 's U.S. RCF Commitment Percentage of the principal amount of all of the Swing Line Loans (collectively, the “"Refunded Swing Line Loans”") outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of any U.S. Borrower to prepay Swing Line Loans in accordance with the provisions of subsection 4.4(d). Unless the U.S. RCF Commitments shall have expired or terminated (in which event the procedures of paragraph (d) of this subsection 2.4 shall apply), each U.S. RCF Lender hereby agrees to make the proceeds of its U.S. RCF Loan (including any Eurocurrency Loan) available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given notwithstanding (i) that the amount of the Mandatory RCF Loan Borrowing may not comply with the minimum amount for RCF Loans otherwise required hereunder, (ii) whether any conditions specified in subsection 6.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory RCF Loan Borrowing and (v) the amount of the U.S. RCF Commitment of such, or any other, U.S. RCF Lender at such time. The proceeds of such U.S. RCF Loans shall be immediately applied to repay the Refunded Swing Line Loans.
(d) If the U.S. RCF Commitments shall expire or terminate at any time while Swing Line Loans are outstanding, each U.S. RCF Lender shall, at the option of the Swing Line Lender, exercised reasonably, either (i) notwithstanding the expiration or termination of the U.S. RCF Commitments, make a U.S. RCF Loan as an ABR Loan (which U.S. RCF Loan shall be deemed a “"U.S. RCF Loan” " for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in such Swing Line Loans, in either case in an amount equal to such U.S. RCF Lender’s 's U.S. RCF Commitment Percentage (determined on the date of, and immediately prior to, expiration or termination of the U.S. RCF Commitments) of the aggregate principal amount of such Swing Line Loans; provided, that in the event that any Mandatory RCF Loan Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any domestic or foreign bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to any Borrower), then each U.S. RCF Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory RCF Loan Borrowing would otherwise have occurred, but adjusted for any payments received from such Borrower on or after such date and prior to such purchase) from the Swing Line Lender such participations in such outstanding Swing Line Loans as shall be necessary to cause such U.S. RCF Lenders to share in such Swing Line Loans ratably based upon their respective U.S. RCF Commitment Percentages, provided, further, that (x) all interest payable on the Swing Line Loans shall be for the account of the Swing Line Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing U.S. RCF Lender shall be required to pay the Swing Line Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory RCF Loan Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to U.S. RCF Loans made as ABR Loans. Each U.S. RCF Lender will make the proceeds of any U.S. RCF Loan made pursuant to the immediately preceding sentence available to the U.S. Administrative Agent for the account of the Swing Line Lender at the office of the U.S. Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the U.S. RCF Commitments expire or terminate, in Dollars. The proceeds of such U.S. RCF Loans shall be immediately applied to repay the Swing Line Loans outstanding on the date of termination or expiration of the U.S. RCF Commitments. In the event that the U.S. RCF Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d), each U.S. RCF Lender shall immediately transfer to the Swing Line Lender, in immediately available funds and in the currency in which such Swing Line Loans were made, the amount of its participation and upon receipt thereof the Swing Line Lender will deliver to such U.S. RCF Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received from any U.S. RCF Lender such U.S. RCF Lender’s 's participating interest in a Swing Line Loan, the Swing Line Lender receives any payment on account thereof (whether directly from the Parent Borrower or any other Borrower in respect of such Swing Line Loan or otherwise, including proceeds of Collateral applied thereto by the Swing Line Lender), or any payment of interest on account thereof, the Swing Line Lender will, if such payment is received prior to 1:00 P.M., New York City time, on a Business Day, distribute to such U.S. RCF Lender its pro rata share thereof prior to the end of such Business Day and otherwise, the Swing Line Lender will distribute such payment on the next succeeding Business Day (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such U.S. RCF Lender’s 's participating interest was outstanding and funded); provided, however, that in the event that such payment received by the Swing Line Lender is required to be returned, such U.S. RCF Lender will return to the Swing Line Lender any portion thereof previously distributed by the Swing Line Lender to it.
(f) Each U.S. RCF Lender’s 's obligation to make the U.S. RCF Loans and to purchase participating interests with respect to Swing Line Loans in accordance with subsections 2.5(c) and 2.5(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any set-off, counterclaim, recoupment, defense or other right that such U.S. RCF Lender or any of the Borrowers may have against the Swing Line Lender, any of the Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default; (iii) any adverse change in condition (financial or otherwise) of any of the Borrowers; (iv) any breach of this Agreement or any other Loan Document by any of the Borrowers, any other Loan Party or any other U.S. RCF Lender; (v) any inability of any of the Borrowers to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such U.S. RCF Loan is to be made or participating interest is to be purchased or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Sources: Credit Agreement (RSC Holdings Inc.)