Swing Line Loans. 13.26.1. Unless the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender. 13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including: 13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six; 13.26.2.2. any of the matters referred to in Section 6.2 or 6.3; 13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and 13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower. 13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure): 13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and 13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount. 13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations. 13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Loan Agreement (Gerdau Usa Inc)
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (each a“Swing Line Loan” and, collectively, the“Swing Line Loans”) to the Borrower from time to time on any Business Day during the period from the Effective Date to the sixth Business Day preceding the Revolving Maturity Date, provided that (i) immediately after making each Swing Line Loan, (A) the aggregate outstanding principal balance of the Swing Line Loans will not exceed the Swing Line Commitment and (B) the Aggregate Revolving Exposure will not exceed the Aggregate Revolving Commitment, (ii) prior thereto or simultaneously therewith the Borrower shall have borrowed Revolving Loans, (iii) no Lender shall be in default of its obligations under this Agreement and (iv) no Credit Party shall have notified the Swing Line Lender and the Majority Lenders agree otherwiseBorrower in writing at least one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, if an Event that the conditions set forth in Section 5.02 have not been satisfied and such conditions remain unsatisfied as of Default occurs then the requested time of the making such Swing Line Loan.
(b) To request a Swing Line Loan, the Borrower shall notify the Administrative Agent and the Swing Line Lender by the delivery of a Credit Request, which shall be sent by facsimile and shall be irrevocable (confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Credit Request in a form approved by the Administrative Agent signed by the Borrower), no later than 11:00 a.m., on the requested Borrowing Date, specifying (i) the aggregate principal amount to be borrowed and (ii) the requested Borrowing Date. The Swing Line Lender will, subject to its determination that the terms and conditions of this Agreement have been satisfied, make the requested amount available promptly on that same day, to the Administrative Agent (for the account of the Borrower) who, thereupon, will promptly request make such amount available to the Agent on behalf Borrower by crediting the account of each Relevant the Borrower (and for this purpose pursuant to Section 2.04. Each Borrowing of a Swing Line Loan shall be in an aggregate principal amount equal to $100,000 or, if less, the unused portion of the Swing Line Commitment.
(c) The Swing Line Lender is irrevocably authorized by each Relevant Borrower shall not be obligated to do so) for an Advance by way make any Swing Line Loan at a time when any Lender shall be in default of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant its obligations under this Agreement unless arrangements to Section 2.4 to repay to eliminate the Swing Line Lender the Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way Loan shall have been made for the benefit of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly such arrangements are satisfactory to the Swing Line Lender. At all times thereafter The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 5.02 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Swing Line Loan.
(d) Principal and accrued interest on each Swing Line Loan shall be due and payable on (i) demand made by the Swing Line Lender any time upon three Business Day’s prior notice to the Borrower (with a copy to the Administrative Agent) at or before 12:00 noon, New York City time, and (ii) in any event on the earliest to occur of (A) the first Borrowing Date with respect to Revolving Loans to occur after the date of such Swing Line Loan, (B) the fifth Business Day prior to the Revolving Credit Commitment Termination Date, (C) the date on which the Swing Line Commitment shall be treated as reduced have been terminated by the Borrower or the Swing Line Lender in accordance with Section 2.06, and (D) the date on which the Swing Line Loans shall become due and payable pursuant to nilthe provisions hereof, whether by acceleration or otherwise.
(e) The Swing Line Lender, at any time and from time to time in its sole and absolute discretion may, on behalf or the Borrower (and the Borrower hereby irrevocably directs the Swing Line Lender to act on its behalf), on one Business Day’s notice given by the Swing Line Lender no later than 12:00 noon, New York City time, request each Lender to make, and each Lender hereby agrees to make, a Revolving Loan in an amount equal to such Lender’s Revolving Percentage of the aggregate amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date of such notice, to repay the Swing Line Lender's Revolver Commitment . Each Lender shall be increased by make the amount of such reduction and Revolving Loan available to the Lenders Administrative Agent in immediately available funds, not later than 10:00 a.m., New York City time, one Business Day after the date of such notice. The proceeds of such Revolving Loans shall make such adjusting payments amongst them in be immediately made available by the manner contemplated by Section 13.22.2 as may be required Administrative Agent to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose application by the Swing Line Lender is irrevocably authorized by to the Relevant Borrower repayment of the Refunded Swing Line Loans. Such Revolving Loans shall be made notwithstanding the Borrower’s failure to do socomply with Section 5.02.
(f) for an Advance by way of Prime Rate If, prior to the time a Revolving Loan or Base Rate Loan (as applicable) from the Lenders otherwise would have been made pursuant to Section 2.4 2.05(e), an Event of Default shall have occurred and be continuing with respect to repay that the Borrower, or if for any other reason, as determined by the Swing Line Loan Lender in its sole discretion, Revolving Loans may not be made as contemplated by Section 2.05(e), each Lender, on the date such Revolving Loans were to have been made pursuant to the notice referred to in Section 2.05(e), shall purchase unconditionally, irrevocably, and severally from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the foregoing provisions outstanding amount of this Subsection 13.26.1 shall equally apply to each such further Advancethe Swing Line Loans (the“Swing Line Participation Amount”). Each Lender unconditionally agrees to pay shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.05(f) that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents. In furtherance of this subsection, upon each receipt by a Lender of notice of an Event of Default from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Advance requested by Lenderpursuant to the immediately preceding sentence to the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except promptly upon receipt thereof in like funds as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3received. If a Lender (a "Defaulting Lender") fails does not make its Swing Line Participation Amount so available, such Lender shall be required to make payment on pay interest to the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (from the balance thereof for date such amount was due until paid in full, on the time being unpaid being referred to portion thereof, at the rate set forth in this Subsection 13.26.3 as an "overdue amount") then until Section 2.04(b), payable upon demand by the Swing Line Lender has received payment of that amount (plus Lender. The Administrative Agent shall distribute such interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender payments to the Swing Line Lender at upon receipt thereof in like funds as received. Whenever the rate payable Administrative Agent is reimbursed by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated therebyBorrower, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in connection therewithpursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (a) During the Availability Period, subject to the terms and conditions hereof, Swing Line Lender agrees to make Swing Line Loans to the Borrower in the aggregate amount up to but not exceeding the Swing Line Lender and Sublimit; provided that after giving effect to the Majority Lenders agree otherwisemaking of any Swing Line Loan, if an Event in no event shall (i) the Total Utilization of Default occurs Commitments exceed the Commitments then in effect or (ii) unless otherwise agreed to in writing by the Swing Line Lender will promptly request Lender, the Agent on behalf aggregate amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way , Revolving Loans and Letters of Prime Rate Loan or Base Rate Loan (as applicable) if so requested Credit issued by the Swing Line Lender exceed the Swing Line Lender’s Commitments hereunder; provided that the Swing Line Lender shall not be required to make a Swing Line Loan to refinance an outstanding Swing Line Loan. Amounts borrowed pursuant to this Section 2.3 may be repaid and pay reborrowed during the proceeds thereof directly Availability Period. The Swing Line Lender’s Commitment shall expire on the Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Lender. At Loans and the Commitments shall be paid in full no later than such date.
(b) Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount; provided that a Swing Line Loan may be in an aggregate amount that is required to finance the reimbursement of a Letter of Credit drawing as contemplated by Section 2.4(d).
(c) The Swing Line Lender may by written notice given to the Administrative Agent not later than 1:00 p.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all times thereafter or a portion of the Swing Line Commitment Loans outstanding. Such notice shall be treated as reduced to nil, specify the aggregate amount of the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and Loans in which the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may will be required to ensure their respective participations participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions such notice such Lender’s Applicable Percentage of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further such Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further AdvanceLoans. Each Lender hereby absolutely and unconditionally agrees to pay pay, upon receipt of notice as provided above, to the Agent Administrative Agent, for the account of the Swing Line Lender Lender, such Lender's Rateable Portion ’s Applicable Percentage of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2Loan or Loans. Except as provided Each Lender acknowledges and agrees that, in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to making any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. Loan, the Swing Line Lender shall be entitled to receive rely, and shall not incur any payment which liability for relying, upon the Defaulting representation and warranty of the Borrower deemed made pursuant to Section 4.2, unless, at least one Business Day prior to the time such Swing Line Loan was made, the Required Lenders or the Borrower shall have notified the Swing Line Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.2(b), (c) or (d) would otherwise not be satisfied if such Swing Line Loan were then made (it being understood and agreed that, in the event the Swing Line Lender shall have received any such notice, it shall have no obligation to make any Swing Line Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been entitled cured or otherwise shall have ceased to receive exist). Each Lender further acknowledges and agrees that its obligation to acquire participations in respect Swing Line Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Credit Facilities Commitments, and that each such payment shall be made without any offset, abatement, withholding or otherwise reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.6 with respect to Loans made by such Lender (and Section 2.6 shall apply, mutatis mutandis, to the payment obligations of any Loan Document; and
13.26.3.2. the overdue amount Lenders pursuant to this paragraph), and the Administrative Agent shall bear interest payable by the Defaulting Lender promptly remit to the Swing Line Lender at the rate payable amounts so received by it from the Relevant Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swing Line Loan acquired pursuant to this paragraph, and thereafter payments in respect of the such Swing Line Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not shall be made pursuant to Subsection 13.26.1 the Administrative Agent and not to reimburse the Swing Line Lender. Any amounts received by the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to Borrower (or other Person on behalf of the Agent for the account Borrower) in respect of such a Swing Line Lender in immediately available funds Loan after receipt by the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such unreimbursed amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swing Line Advances until Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal or to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall onlyAdministrative Agent, howeveras applicable, be made by the Lenders in the event if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swing Line Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the Borrower of its obligation to repay such Swing Line Loan.
(d) The Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed may resign as Swing Line Obligations.
13.26.5Lender upon 30 days prior written notice to the Administrative Agent, the Lenders and the Borrower. The Swing Line Lender shallmay be replaced at any time by written agreement among the Borrower, forthwith upon its receipt the Administrative Agent and the successor Swing Line Lender. The Administrative Agent shall notify the Lenders of any reimbursement such replacement of the Swing Line Lender. At the time any such replacement or resignation shall become effective, (in whole or in parti) the Borrower shall prepay any outstanding Swing Line Loans made by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, resigning or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such removed Swing Line Lender, without interest to (ii) upon such prepayment, the extent that interest is not payable by such resigning or removed Swing Line Lender shall surrender any Swing Line Note held by it to the Borrower for cancellation, and (iii) the Borrower shall issue, if so requested by the successor Swing Line Loan Lender, a new Swing Line Note to the successor Swing Line Lender, in connection therewiththe principal amount of the Swing Line Sublimit then in effect and with other appropriate insertions. From and after the effective date of any such replacement or resignation, (x) any successor Swing Line Lender shall have all the rights and obligations of a Swing Line Lender under this Agreement with respect to Swing Line Loans made thereafter and (y) references herein to the term “Swing Line Lender” shall be deemed to refer to such successor or to any previous Swing Line Lender, or to such successor and all previous Swing Line Lenders, as the context shall require.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Pinterest, Inc.)
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions of this Agreement, and further subject to the agreement of the Swing Line Lender and the Majority Lenders agree otherwiseBorrower with respect to the Negotiated Rate to be applied, if an Event of Default occurs then the Swing Line Lender will promptly request agrees to make swing line loans (each a "Swing Line Loan" and, collectively, the Agent "Swing Line Loans") to the Borrower from time to time on behalf any Business Day during the Revolving Credit Commitment Period (but excluding the ten consecutive Business Days immediately preceding the Revolving Credit Maturity Date), provided that immediately after making each Swing Line Loan, (i) the aggregate unpaid balance of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to Loans would not exceed the Swing Line Lender Commitment Amount, and (ii) the Aggregate Credit Exposure would not exceed the Aggregate Revolving Credit Commitment Amount. During the foregoing period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line LoansCommitment, all in accordance with the terms and conditions of this Agreement. No Swing Line Loan shall be made prior to the making of the first Revolving Credit Loans on the first Borrowing Date.
(b) The Lenders are irrevocably directed by each Relevant Borrower Swing Line Lender shall not be obligated to make any Advance by way Swing Line Loan at a time when any Lender shall be in default of Prime Rate its obligations under this Agreement unless arrangements to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loan or Base Rate Loan (as applicable) if so requested by shall have been made for the benefit of the Swing Line Lender and pay the proceeds thereof directly such arrangements are satisfactory to the Swing Line Lender. At all times thereafter the The Swing Line Commitment Lender shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall not make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan if, no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, it shall have received written notice from any Credit Party that the conditions set forth in Section 6 with respect thereto have not been satisfied.
(c) The Swing Line Lender will again promptly request may by written notice given to the Administrative Agent not later than 10:00 a.m. on behalf of any Business Day notify the Relevant Borrower (and for this purpose Administrative Agent that the Swing Line Lender is irrevocably authorized requesting that each Lender, and the Administrative Agent may (with the consent of Required Lenders) or shall (at the request of Required Lenders) by written notice given to the Relevant Borrower Swing Line Lender not later than 10:00 a.m. on any Business Day require that each Lender, at the option of the Swing Line Lender or the Administrative Agent, as the case may be, (i) make a Revolving Credit Loan in an amount equal to do soits Commitment Percentage of the outstanding principal balance of, and accrued and unpaid interest on, the Swing Line Loans, or (ii) for purchase, unconditionally and irrevocably, without recourse or warranty, an Advance by way undivided participating interest in the outstanding principal balance of, and accrued and unpaid interest on, the Swing Line Loans in an amount equal to its Commitment Percentage thereof. In either such case (i) the Administrative Agent shall notify each Lender of Prime Rate the details thereof and of the amount of such Lender's Revolving Credit Loan or Base Rate participation interest, as the case may be, and (ii) each Lender shall, whether or not any Default shall have occurred and be continuing, any representation or warranty shall be accurate, any condition to the making of any loan hereunder shall have been fulfilled, or any other matter whatsoever, make the Revolving Credit Loan required to be made by it, or purchase the participation required to be purchased by it, under this paragraph by wire transfer of immediately available funds to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, (as applicableA) from in the Lenders event that such Lender receives such notice prior to 12:00 noon on any Business Day, by no later than 3:00 p.m. on such Business Day, or (B) in the event that such Lender receives such notice at or after 12:00 noon on any Business Day, by no later than 1:00 p.m. on the immediately succeeding Business Day. Any Loans made pursuant to this paragraph (c) shall, for all purposes hereof, be deemed to be Revolving Credit Loans referred to in Section 2.1 and made pursuant to Section 2.4 2.5, and the Lenders' obligations to repay that make such Loans shall be absolute and unconditional. The Administrative Agent will make such Loans, or the amount of such participations, as the case may be, available to the Swing Line Loan and Lender by promptly crediting or otherwise transferring the foregoing provisions of this Subsection 13.26.1 shall equally apply amounts so received, in like funds, to each such further Advancethe Swing Line Lender. Each Lender unconditionally agrees shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.3 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be absolute and unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) Each Lender shall indemnify and hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying the Administrative Agent any amount such Lender is required to pay in accordance with this Section 2.3 (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall be required to pay interest to the Administrative Agent for the account of the Swing Line Lender from the date such Lender's Rateable Portion amount was due until paid in full, on the unpaid portion thereof, at a rate of each Advance requested interest per annum equal to (i) from the date such amount was due until the third day therefrom, the Federal Funds Rate, and (ii) thereafter, the Federal Funds Rate plus 2%, payable upon demand by the Swing Line Lender on behalf of the Relevant Borrower Lender. The Administrative Agent shall distribute such interest payments to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrowerupon receipt thereof in like funds as received.
13.26.3. If a Lender (a "Defaulting Lender"e) fails to make payment on Whenever the due date therefor of any amount due from it Administrative Agent is reimbursed by the Borrower, for the account of the Swing Line Lender, for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender pursuant to Subsection 13.26.1 (this Section, the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received Administrative Agent will promptly pay over such payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amountLender.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (Kohls Corporation)
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a "SWING LINE LOAN" and, collectively, the "SWING LINE LOANS") to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the "SWING LINE MATURITY DATE") being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders agree otherwise, if and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (PROVIDED that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a "MANDATORY BORROWING"), shall be made by all Lenders PRO RATA based on each such Lender's Commitment Percentage on the Swing Line Lender will promptly request Domestic Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) whether the amount of such reduction Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(c) Upon each receipt by a further Swing Line Loan Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf of the Relevant Borrower (and for this purpose the outstanding Swing Line Lender is irrevocably authorized by Loans (including accrued interest thereon) in an amount equal to the Relevant Borrower to do so) for an Advance by way product of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan its Commitment Percentage and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account outstanding balance of the Swing Line Loans (each, a "SWING LINE PARTICIPATION AMOUNT"). Each Lender such Lender's Rateable Portion shall also be liable for an amount equal to the product of each Advance requested its Commitment Percentage and any amounts paid by the Swing Line Lender on behalf of the Relevant Borrower pursuant to repay Swing Line Loans made by such Swing Line Lender.
13.26.2this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and Such liabilities shall be performed in accordance with the terms unconditional and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred without regard to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights compliance by the Agent Borrower with any of its obligations under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant BorrowerLoan Documents.
13.26.3. If (d) In furtherance of Section 2.2(c), upon each receipt by a Lender (a "Defaulting Lender") fails of notice from the Administrative Agent, such Lender shall promptly make available to make payment on the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred immediately preceding sentence to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of that such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (plus except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest as provided below) in full (and without in any way limiting to the rights Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in respect full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such failure):
13.26.3.1. amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate PLUS 2%, payable upon demand by the Swing Line Lender Lender. The Administrative Agent shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear distribute such interest payable by the Defaulting Lender payments to the Swing Line Lender at upon receipt thereof in like funds as received.
(e) Whenever the rate payable Administrative Agent is reimbursed by the Relevant Borrower in respect for the account of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in immediately available funds pursuant to this Section, the purchase price for Administrative Agent will promptly remit such payment to such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS Corp)
Swing Line Loans. 13.26.1In addition to the other options available to Borrower hereunder, up to $20,000,000 of the Swing Line Lender's Commitment, shall be available for Swing Line Loans subject to the following terms and conditions. Unless Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with SECTION 2.10 hereof. All Swing Line Loans shall bear interest at the CBR Rate. In no event shall the Swing Line Lender be required to fund a Swing Line Loan if it would increase the total aggregate outstanding Loans by Swing Line Lender hereunder plus its Percentage of Facility Letter of Credit Obligations to an amount in excess of its Commitment. Upon request of the Swing Line Lender, each Lender irrevocably agrees to purchase its Percentage of any Swing Line Loan made by the Swing Line Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of a Default hereunder provided that such Default did not exist at the time the Swing Line Loan was made and provided further that no Lender shall be required to have total outstanding Loans plus its Percentage of Facility Letters of Credit to be in an amount greater than its Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Loan made by the purchasing Lender and not by the selling Lender for all purposes under this Agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the Swing Line Lender and all such amounts accruing on or attributable to such Loans for the Majority Lenders agree otherwiseperiod from and after the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the purchasing Lender. If prior to purchasing its Percentage in a Swing Line Loan one of the events described in SECTION 8.7 or 8.8 shall have occurred and such event prevents the consummation of the purchase contemplated by preceding provisions, each Lender will purchase an undivided participating interest in the outstanding Swing Line Loan in an amount equal to its Percentage of such Swing Line Loan. From and after the date of each Lender's purchase of its participating interest in a Swing Line Loan, if an Event of Default occurs then the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will promptly request distribute to such Lender its participating interest in such amount (appropriately adjusted, in the Agent on behalf case of each Relevant Borrower (interest payments, to reflect the period of time during which such Lender's participating interest was outstanding and for this purpose funded); provided, however, that in the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested event that such payment was received by the Swing Line Lender and pay the proceeds thereof directly is required to be returned to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver will return to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it distributed by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithto it. No Swing Line Loan shall be outstanding for more than five (5) days at a time and Swing Line Loans shall not be outstanding for more than a total of ten (10) days during any month.
Appears in 1 contract
Sources: Revolving Credit Agreement (Duke Weeks Realty Limited Partnership)
Swing Line Loans. 13.26.1(i) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower in Dollars from time to ---------------- time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment Amount, provided, however, that, immediately after making each Swing Line Loan, (x) -------- ------- the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment Amount, (y) Net Finance Assets shall be in an amount at least equal to the Minimum Asset Coverage and (z) the aggregate unpaid balance of all Swing Line Loans plus the aggregate unpaid balance of all Revolving ---- Credit Loans shall not exceed the Adjusted Aggregate Revolving Credit Commitment. Unless During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. No Swing Line Loan shall be made prior to the making of the first Revolving Credit Loans on the Effective Date.
(ii) The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Bank shall be in default of its obligations under this Agreement unless arrangements to eliminate the Swing Line Lender's risk with respect to such defaulting Bank's participation in such Swing Line Loan shall have been made for the benefit of the Swing Line Lender and such arrangements are in all respects satisfactory to the Swing Line Lender. The Swing Line Lender will not make any Swing Line Loan if the Agent or any Bank, by notice to the Swing Line Lender and the Majority Lenders agree otherwiseBorrower no later than one Business Day prior to the borrowing date with respect to such Swing Line Loan, if shall have determined that the conditions set forth in ARTICLE 5 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Swing Line Loan. Each Swing Line Loan shall be due and payable on the earlier to occur of the last day of the Swing Line Interest Period applicable thereto and the Swing Line Maturity Date.
(iii) Upon (1) a request by the Swing Line Lender, (2) a receipt by a Bank of notice of an Event of Default occurs then from the Agent, or (3) the acceleration of any loan or termination of the Revolving Credit Commitment, Term Loan Commitment or the Swing Line Commitment, each Bank shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will promptly request a participation in the Agent on behalf outstanding Swing Line Loans (including accrued interest thereon) in an amount (the "Swing Line Participation Amount") ------------------------------- equal to the product of each Relevant Borrower (its Percentage and for this purpose the aggregate outstanding principal amount of the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) Loans plus all accrued and unpaid interest thereon. Each Bank shall also be liable for an Advance amount equal to the product of its Percentage and any amounts paid by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders Borrower pursuant to this Section 2.4 to repay that are subsequently rescinded or avoided, or must be otherwise restored or returned. Such liabilities shall be absolute and unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(iv) In furtherance of Section 2.2(c), upon the occurrence of any event set forth in Section 2.1(c)(iii), such Bank shall promptly make available its Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay Participation Amount to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of at the applicable Agent Payment Office, in Dollars, and in immediately available funds. The Agent shall deliver the payments made by each Advance requested by Bank pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2promptly upon receipt thereof in like funds as received. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, Each Bank shall not be subject to any qualification or exception whatsoever indemnify and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by hold harmless the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Bank to pay, or from any delay in paying the Agent any amount such Bank is required to pay in accordance with this Section 2.1(c)(iv) (except in respect of losses, liabilities, actions, suits, judgments, demands, costs and expenses suffered by the Agent or the Issuing Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Agent or the Swing Line Lender, as the case may be), and such Bank against shall be required to pay interest to the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it Agent for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances amount was due until paid in full, on the date of delivery of such funds to such Swing Line Lender by such Lender unpaid portion thereof, at a rate of interest per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made payable upon demand by the Lenders in the event and Swing Line Lender. The Agent shall distribute such interest payments to the extent such Swing Line Lender has not been upon receipt thereof in like funds as received.
(v) Whenever the Agent is reimbursed in full by the Relevant Borrower Borrower, for interest on the amount account of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such for any payment in connection with Swing Line Lender in connection therewithLoans and such payment relates to an amount previously paid by a Bank pursuant to this Section, the Agent will promptly pay over such payment to such Bank.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Subject to all of the terms and conditions hereof, Harr▇▇ ▇▇▇st and Savings Bank ("Harr▇▇ ▇▇▇k") agrees to make loans ("Swing Line Loans") to each Borrower under a swing line of credit ("Swing Line"); provided, however, that the aggregate amount of Swing Line Loans at any time outstanding to all Borrowers taken together shall not exceed the Swing Line Lender and Commitment; provided further, however, that the Majority Lenders agree otherwiseaggregate amount of the Revolving Loans, if an Event of Default occurs then the Swing Line Lender will promptly request Loans and the Agent L/C Obligations outstanding at any one time from all the Borrowers taken together shall not at any time exceed the lesser of the Commitments then in effect or the Available Borrowing Base as then determined and computed for all the Borrowers; provided still further, however, that the aggregate amount outstanding at any time on behalf of each Relevant Borrower (Revolving Loans and for this purpose the Swing Line Lender is irrevocably authorized by Loans made to each Relevant Borrower to do so) Borrower, and L/C Obligations in respect of Letters of Credit issued for an Advance by way of Prime Rate Loan such Borrower's sole or joint account, shall not exceed such Borrower's Available Borrowing Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loansthen determined and computed. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced available to nil, the Borrowers and may be availed of by each Borrower from time to time and borrowings thereunder may be repaid and used again during the period ending on the Termination Date. Without regard to the face principal amount of the Swing Line Lender's Revolver Commitment shall be increased Note, the actual principal amount at any time outstanding and owing by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent Borrowers on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion Note on any date during the period ending on the Termination Date shall be the sum of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay all Swing Line Loans then or theretofor made by thereon through such date less all payments actually received thereon through such date. Each Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and Loan shall be performed in accordance with due and payable on the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability last day of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant BorrowerInterest Period selected therefor.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (i) Subject to the terms and conditions hereof, the Swing Line Lender and Bank may in its discretion make swing line loans in Dollars (the Majority Lenders agree otherwise, if "Swing Line Loans") to the Borrowers from time to time during the Five Year Commitment Period in an Event aggregate outstanding principal amount up to the amount of Default occurs then the Swing Line Lender will promptly request Commitment for periods not to exceed seven days as requested by the Agent on behalf of each Relevant Borrower (Borrowers and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower agreed to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nilBank; provided, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further that, no Swing Line Loan shall be made if, after giving effect to the Swing Line Lender will again promptly request the Agent on behalf making of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that such Swing Line Loan and the simultaneous application of the proceeds thereof, (x) the aggregate amount of all outstanding Swing Line Loans plus the aggregate Dollar Equivalent amount of all outstanding Five Year Loans plus the aggregate amount of the Letter of Credit Obligations then outstanding, would exceed the aggregate amount of the Five Year Commitments of all of the Banks or (y) the aggregate Dollar Equivalent amount of all Five Year Loans made by a Bank plus such Bank's Ratable Share (based on its Five Year Commitment Percentage) of the amount of Swing Line Loans and Letter of Credit Obligations then outstanding would exceed its Five Year Commitment. Within the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to limits, the Agent for Borrowers may during the account of Five Year Commitment Period borrow, repay and reborrow under the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4Commitment, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions limitations hereof. The interest rate for a Swing Line Loan shall be the rate that is mutually agreed by the Borrowers and the Swing Line Bank at the time such Swing Line Loan is made or, absent such an agreement, at the Base Rate.
(ii) The Borrowers may request a Swing Line Loan to be made on any Business Day. Each request for a Swing Line Loan shall be in the form of this Agreement under all circumstances including:
13.26.2.1. any lack a Notice of validity Borrowing (or enforceability of a request by telephone immediately confirmed in writing, it being understood that the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of Swing Line Bank may rely on the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence authority of any Default or Event individual making such telephonic request without the necessity of Default or the exercise receipt of any rights such written confirmation) and received by the Agent under Section 13.2; and
13.26.2.4. not later than twelve o'clock noon (12:00) (Philadelphia time) on the absence of any demand for payment being Business Day such Swing Line Loan is to be made, specifying in each case (i) the amount to be borrowed, (ii) the requested borrowing date, and (iii) the date such Swing Line Loan is to be repaid, if applicable (the "Swing Line Repayment Date"). The request for such Swing Line Loan shall be irrevocable. Provided that all applicable conditions precedent contained herein have been satisfied, the Swing Line Bank shall, not later than 4:00 p.m., Philadelphia time, on the date specified in the Borrowers' request for such Swing Line Loan, make such Swing Line Loan by crediting the Borrowers' deposit account with the Swing Line Bank or as otherwise directed by the Borrowers.
(iii) The obligation of the Borrowers to repay the Swing Line Loans shall be evidenced by a promissory note of the Borrowers dated the date hereof, payable to the order of the Swing Line Bank in the principal amount of the Swing Line Commitment and substantially in the form of Exhibit A-3 (as amended, supplemented or otherwise modified from time to time, the "Swing Line Note").
(iv) Swing Line Loans shall be repaid on the earlier of (1) the Five Year Termination Date, (2) the Swing Line Repayment Date for such Swing Line Loan or (3) the seventh day after the date such Swing Line Loan was made (any proof such date being the "Swing Line Conversion Date"). Unless the Borrowers shall have notified the Agent prior to 11:00 a.m., Philadelphia time, on such Swing Line Conversion Date that the Borrowers intend to repay such Swing Line Loan with funds other than the proceeds of claim being fileda Five Year Loan, the Borrowers shall be deemed to have given notice to the Agent requesting the Five Year Banks to make Five Year Loans which shall earn interest at the Base Rate in effect on the Swing Line Conversion Date in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, and subject to satisfaction or waiver of the conditions specified in Section 4.2, the Five Year Banks shall, on the Swing Line Conversion Date, make Five Year Loans, which shall earn interest at the Base Rate, in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, the proceeds of which shall be applied directly by the Agent to repay the Swing Line Bank for such Swing Line Loan plus accrued interest thereon; and provided, further, that if for any Security being enforced, any proceeding being commenced or any judgment being obtained reason the proceeds of such Five Year Loans are not received by the Swing Line Lender or Bank on the Issuing Swing Line Conversion Date in an aggregate amount equal to the amount of such Swing Line Loan plus accrued interest, the Borrowers shall reimburse the Swing Line Bank against on the Relevant Borrowerday immediately following the Swing Line Conversion Date, in same day funds, in an amount equal to the excess of the amount of such Swing Line Loan over the aggregate amount of such Five Year Loans, if any, received plus accrued interest thereon.
13.26.3(v) In the event that the Borrowers shall fail to repay the Swing Line Bank as provided in this Section 2.1(d) in an amount equal to the amount required under Section 2.1(d), the Agent shall promptly notify each Five Year Bank of the unpaid amount of such Swing Line Loan and of such Bank's respective participation therein in an amount equal to such Bank's pro rata share of such Swing Line Loan (based on its Five Year Commitment Percentage). If a Lender (a "Defaulting Lender") Each Five Year Bank shall make available to the Agent for payment to the Swing Line Bank an amount equal to its respective participation therein, in same day funds, at the office of the Agent specified in such notice, not later than 11:00 a.m., Philadelphia time, on the Business Day after the date the Agent notifies each Bank. In the event that any Five Year Bank fails to make payment on available to the due date therefor Agent the amount of any such Bank's participation in such unpaid amount due from it for the account of as provided herein, the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender Bank shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue recover such amount shall bear on demand from such Bank together with interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender thereon at a rate per annum equal to the Federal Funds Effective Rate (for each day during the period between the Swing Line Conversion Date and the date on which such Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the case reimbursement is Agent its pro rata share of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to be made in U.S. Dollarsmake available to the Agent its pro rata share of such unpaid amount on the Swing Line Conversion Date. The Agent shall distribute to each Bank which has paid all amounts payable by it under this Section 2.1(d) or with respect to the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for unpaid amount of any Swing Line Loan, such period. Such payment shall only, however, be made Bank's pro rata share of all payments received by the Lenders Agent from the Borrowers in the event and to the extent repayment of such Swing Line Lender Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has not been reimbursed paid all amounts payable by it under this Section 2.1(d) shall have a direct right to repayment of such amounts from the Borrowers subject to the procedures for repaying Banks set forth in full by this Section 2.1(d) and the Relevant Borrower for interest on provisions of Section 9.8.
(vi) In the event the Five Year Commitments are terminated in accordance with the terms hereof, the Swing Line Commitment shall also be terminated automatically. In the event the Borrowers reduce the Five Year Commitment to less than the Swing Line Commitment, the Swing Line Commitment shall immediately be reduced to an amount equal to the Five Year Commitment. In the event the Borrowers reduce the Five Year Commitment to less than the outstanding principal amount of the Swing Line Loans, the Borrowers shall immediately repay the amount of such unreimbursed by which the outstanding Swing Line ObligationsLoans exceeds the Swing Line Commitment as so reduced plus accrued interest thereon.
13.26.5. The (vii) At no time shall there be more than two outstanding Swing Line Lender shallLoans. Each Swing Line Loan shall be in an original principal amount of $100,000 or a whole multiple thereof.
(viii) The Borrowers shall have the right at any time and from time to time to prepay the Swing Line Loans, forthwith upon its receipt of any reimbursement (in whole or in part) by , without premium or penalty (but in any event subject to Section 2.18), upon prior written, facsimile or telephonic notice to the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4Bank given no later than 1:00 p.m., or Philadelphia time, on the date of any other amount from proposed prepayment. Each notice of prepayment shall specify the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required Swing Line Loan to be returnedprepaid and the amount to be prepaid, shall be irrevocable and shall commit the Borrowers to prepay such Lender shall promptly return to amount on such Swing Line Lender date, with accrued interest thereon and any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithamounts owed under Section 2.18 hereof.
Appears in 1 contract
Sources: Credit Agreement (West Pharmaceutical Services Inc)
Swing Line Loans. 13.26.1(i) The Swing Line Lender agrees, on the terms and subject to the conditions set forth herein and in the other Loan Documents, to make a portion of the Revolving Commitments available to the Borrower from time to time during the Availability Period by making Swing Line Loans to the Borrower in Dollars (each such loan, a “Swing Line Loan” and, collectively, the “Swing Line Loans”); provided that (A) the aggregate principal amount of the Swing Line Loans outstanding at any one time shall not exceed the Swing Line Committed Amount, (B) with regard to each Lender individually (other than the Swing Line Lender in its capacity as such), such Lender’s outstanding Revolving Loans plus its Participation Interests in outstanding Swing Line Loans plus its Participation Interests in outstanding L/C Obligations shall not at any time exceed such Lender’s Revolving Commitment Percentage of the Revolving Committed Amount, (C) with regard to the Revolving Lenders collectively, the sum of the aggregate principal amount of Swing Line Loans outstanding plus the aggregate amount of Revolving Loans outstanding plus the aggregate amount of L/C Obligations outstanding shall not exceed the Revolving Committed Amount and (D) the Swing Line Committed Amount shall not exceed the aggregate of the Revolving Commitments then in effect. Unless Swing Line Loans shall be made and maintained as Base Rate Loans and may be repaid and reborrowed in accordance with the provisions hereof prior to the Swing Line Termination Date. Swing Line Loans may be made notwithstanding the fact that such Swing Line Loans, when aggregated with the Swing Line Lender’s other Revolving Outstandings, exceeds its Revolving Commitment. The proceeds of a Swing Line Borrowing may not be used, in whole or in part, to refund any prior Swing Line Borrowing.
(ii) The principal amount of all Swing Line Loans shall be due and payable on the earliest of (A) the maturity date agreed to by the Swing Line Lender and the Majority Lenders agree otherwiseBorrower with respect to such Swing Line Loan (which maturity date shall not be more than seven Business Days from the date of advance thereof); (B) the Swing Line Termination Date, if an Event (C) the occurrence of Default occurs then any proceeding with respect to the Borrower under any Debtor Relief Law or (D) the acceleration of any Loan or the termination of the Revolving Commitments pursuant to Section 8.02.
(iii) With respect to any Swing Line Loans that have not been voluntarily prepaid by the Borrower or paid by the Borrower when due under clause (ii) above, the Swing Line Lender will promptly (by request to the Administrative Agent) or the Administrative Agent at any time may, and shall at any time Swing Line Loans in an amount of $1,000,000 or more shall have been outstanding for more than seven days, on behalf one Business Day’s notice, require each Revolving Lender, including the Swing Line Lender, and each such Lender hereby agrees, subject to the provisions of each Relevant Borrower this Section 2.01(d), to make a Revolving Loan (and for this purpose which shall be initially funded as a Base Rate Loan) in an amount equal to such Lender’s Revolving Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date notice is given.
(iv) In the case of Revolving Loans made by Lenders other than the Swing Line Lender under clause (iii) above, each such Revolving Lender shall make the amount of its Revolving Loan available to the Administrative Agent, in same day funds, at the Administrative Agent’s Office, not later than 1:00 P.M. on the Business Day next succeeding the date such notice is irrevocably authorized by each Relevant Borrower given. The proceeds of such Revolving Loans shall be immediately delivered to do sothe Swing Line Lender (and not to the Borrower) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 and applied to repay the Refunded Swing Line Loans. On the day such Revolving Loans are made, the Swing Line Lender’s Revolving Commitment Percentage of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by the Swing Line Lender and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall instead be outstanding as Revolving Loans. The Borrower authorizes the Administrative Agent and the Swing Line Lender to charge the Borrower’s account with the Administrative Agent (up to the amount available in such account) in order to pay immediately to the Swing Line Lender the amount of such Refunded Swing Line Loans to the extent amounts received from the Revolving Lenders, including amounts deemed to be received from the Swing Line Lender, are not sufficient to repay in full such Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by to the Swing Line Lender and pay should be recovered by or on behalf of the proceeds thereof directly to Borrower from the Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Revolving Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower 2.13.
(and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do sov) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion A copy of each Advance requested notice given by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount"Section 2.01(d) then until shall be promptly delivered by the Swing Line Lender has received payment to the Administrative Agent and the Borrower. Upon the making of that a Revolving Loan by a Revolving Lender pursuant to this Section 2.01(d), the amount so funded shall no longer be owed in respect of its Participation Interest in the related Refunded Swing Line Loans.
(plus vi) If as a result of any proceeding under any Debtor Relief Law, Revolving Loans are not made pursuant to this Section 2.01(d) sufficient to repay any amounts owed to the Swing Line Lender as a result of a nonpayment of outstanding Swing Line Loans, each Revolving Lender agrees to purchase, and shall be deemed to have purchased, a participation in such outstanding Swing Line Loans in an amount equal to its Revolving Commitment Percentage of the unpaid amount together with accrued interest as provided below) thereon. Upon one Business Day’s notice from the Swing Line Lender, each Revolving Lender shall deliver to the Swing Line Lender an amount equal to its respective Participation Interest in full (and without such Swing Line Loans in any way limiting same day funds at the rights office of the Swing Line Lender specified or referred to in Section 10.02. In order to evidence such Participation Interest each Revolving Lender agrees to enter into a participation agreement at the request of the Swing Line Lender in respect form and substance reasonably satisfactory to all parties. In the event any Revolving Lender fails to make available to the Swing Line Lender the amount of such failure):
13.26.3.1. Revolving Lender’s Participation Interest as provided in this Section 2.01(d)(vi), the Swing Line Lender shall be entitled to receive recover such amount on demand from such Revolving Lender together with interest at the customary rate set by the Swing Line Lender for correction of errors among banks in New York City for one Business Day and thereafter at the Base Rate plus the then Applicable Margin for Base Rate Loans.
(vii) Each Revolving Lender’s obligation to make Revolving Loans pursuant to clause (iv) above and to purchase Participation Interests in outstanding Swing Line Loans pursuant to clause (vi) above shall be absolute and unconditional and shall not be affected by any payment circumstance, including (without limitation) (i) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender or any other Person may have against the Defaulting Lender would otherwise have been entitled to receive Swing Line Lender, the Borrower, Holdings or any other Loan Party, (ii) the occurrence or continuance of a Default or an Event of Default or the termination or reduction in respect the amount of the Credit Facilities Revolving Commitments after any such Swing Line Loans were made, (iii) any adverse change in the condition (financial or otherwise in respect otherwise) of the Borrower or any other Person, (iv) any breach of this Agreement or any other Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable Document by the Defaulting Borrower or any other Lender, (v) whether any condition specified in Article IV is then satisfied or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the forgoing. If such Lender does not pay such amount forthwith upon the Swing Line Lender’s demand therefor, and until such time as such Lender makes the required payment, the Swing Line Lender shall be deemed to continue to have outstanding Swing Line Loans in the amount of such unpaid Participation Interest for all purposes of the Loan Documents other than those provisions requiring the other Lenders to purchase a participation therein. Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans, and any other amounts due to it hereunder to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the fund Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender Loans in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed the Participation Interest in Swing Line Obligations.
13.26.5. The Swing Line Loans that such Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation failed to which other Lenders have purchased a participation interest purchase pursuant to Subsection 13.26.4, or of any other this Section 2.01(d)(vi) until such amount from the Relevant Borrower or any other Person in respect has been purchased (as a result of such payment (other than pursuant to Section 2.6 assignment or 6.2otherwise), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions set forth herein, the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the agrees to make Swing Line Lender Loans to the Borrower from time to time prior to the Maturity Date in Dollars, in an aggregate principal amount at any time outstanding that will promptly request not result in (x) the Agent on behalf aggregate principal amount of each Relevant Borrower (and for this purpose the outstanding Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from Loans exceeding the Lenders pursuant to Section 2.4 to repay to the total Swing Line Lender Commitment, (y) the outstanding Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account Loans of the Swing Line Lender such exceeding the Swing Line Lender's Rateable Portion of each Advance requested by ’s Swing Line Commitment or (z) the aggregate Revolving Credit Exposure exceeding the Total Revolving Credit Commitments; provided that the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be required to make a Swing Line Loan to refinance an outstanding Swing Line Borrowing. Within the foregoing limits and subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of set forth herein, the Borrower may borrow, prepay and reborrow Swing Line Loans. Notwithstanding anything to the contrary contained in this Agreement under all circumstances including:
13.26.2.1. any lack of validity Section 2.22 or enforceability of elsewhere in this Agreement, in the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being madeevent that a Revolving Credit Lender is a Defaulting Lender, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the no Swing Line Lender shall be required to issue or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of extend any amount due from it for the account of the Swing Line Lender pursuant Loan, unless any Fronting Exposure in respect thereof, after giving effect to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to extension of such Swing Line Loan, may be reallocated among Non-Defaulting Lenders in this Subsection 13.26.3 as an "overdue amount"accordance with Section 2.21(a)(iv) then until or, if such reallocation is not available in accordance with such Section, the Swing Line Lender has received payment of that amount (plus interest as provided below) entered into arrangements satisfactory to it, in full (its sole discretion, and without in any way limiting the rights of Borrower to eliminate the Swing Line Lender Lender’s risk with respect to the participation in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment Loans by all such Defaulting Lenders, which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of include prepaying such Swing Line Lender Loans while any Fronting Exposure exists in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed relation thereto.
(b) To request a Swing Line Advances. Each Lender shallBorrowing, upon demand by such Swing Line Lender made to the Agent, deliver to Borrower shall notify the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed request by not later than 11:00 a.m., New York City time on the day of the proposed Swing Line Advances until Borrowing by delivering a Swing Line Borrowing Request. Each such notice and Swing Line Borrowing Request shall be irrevocable and shall specify (i) the requested date (which shall be a Business Day), (ii) the amount of delivery the requested Swing Line Borrowing, (iii) the term of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.Loan and
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $5,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on April 15, 1997 if the Tranche A Term Loans, the Tranche B Term Loans and the initial Revolving Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(iv) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 10:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation interest in any unpaid Swing Line Loans pursuant to Subsection 13.26.4the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or of any other amount from the Relevant Borrower right which such Lender may have against Swing Line Lender, Company or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each Lender shall promptly return are subject to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1In addition to the other options available to ---------------- Borrower hereunder, up to $5,000,000 of the Swing Line Lender's Revolving Commitment shall be available for Swing Line Loans subject to the following terms and conditions. Unless Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.9 hereof. ----------- All Swing Line Loans shall bear interest at the Adjusted ABR Rate. In no event shall the Swing Line Lender be required to fund a Swing Line Loan if it would increase the total aggregate outstanding Revolving Loans by Swing Line Lender hereunder plus its Revolving Percentage of Facility Letter of Credit Obligations to an amount in excess of its Revolving Commitment. Upon request of the Swing Line Lender, each Revolving Lender irrevocably agrees to purchase its Revolving Percentage of any Swing Line Loan made by the Swing Line Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of a Default hereunder, provided that -------- no Lender shall be required to have the sum of its total outstanding Revolving Loans plus its Revolving Percentage of Facility Letters of Credit be greater than its Revolving Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Revolving Loan made by the purchasing Revolving Lender and not by the selling Lender for all purposes under this Agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the Swing Line Lender and all such amounts accruing on or attributable to such Loans for the Majority Lenders agree otherwiseperiod from and after the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the purchasing Lender. If prior to purchasing its Revolving Percentage in a Swing Line Loan one of the events described in Section 8.7 or ----------- 8.8 shall have occurred and such event prevents the consummation of the purchase --- contemplated by preceding provisions, each Revolving Lender will purchase an undivided participating interest in the outstanding Swing Line Loan in an amount equal to its Revolving Percentage of such Swing Line Loan. From and after the date of each Lender's purchase of its participating interest in a Swing Line Loan, if an Event of Default occurs then the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will promptly request distribute to such Lender its participating interest in such amount (appropriately adjusted, in the Agent on behalf case of each Relevant Borrower (interest payments, to reflect the period of time during which such Lender's participating interest was outstanding and for this purpose funded); provided, however, that in the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested event that such payment -------- ------- was received by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returnedreturned to the Borrower, such each Revolving Lender shall promptly will return to such the Swing Line Lender any portion thereof previously transferred to it distributed by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithto it. No Swing Line Loan shall be outstanding for more than five (5) days at a time and Swing Line Loans shall not be outstanding for more than a total of ten (10) days during any month.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to ---------------- the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $3,000,000; provided that any reduction of the Agent on behalf Revolving -------- Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, any Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall -------- expire immediately and without further action on November 14, 1997 if the Closing Date shall not have occurred on or before that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (Charlotte, NC time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note, of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under subsection 10.5. Immediately upon the Revolver Facility reflect their respective Rateable Portions funding of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further each Swing Line Loan by Swing Line Lender, each Lender shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated without giving effect to clauses (d) and (e) of the definition of Revolving Loan Exposure) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender will again promptly request an amount equal to its respective participation in same day funds at the Agent on behalf of the Relevant Borrower (Funding and for this purpose the Swing Line Payment Office. In order to evidence such participation, each Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to enter into a separate participation agreement at the Agent for the account request of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect form and substance reasonably satisfactory to all parties. In the event any Lender fails to make available to Swing Line Lender the amount of such failure):
13.26.3.1. the Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation interest in any unpaid Swing Line Loans pursuant to Subsection 13.26.4the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or of any other amount from the Relevant Borrower right which such Lender may have against Swing Line Lender, Company or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each -------- Lender shall promptly return are subject to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6.
Appears in 1 contract
Sources: Credit Agreement (Sandhills Inc)
Swing Line Loans. 13.26.1(a) The Swing Line. Unless Subject to the terms and conditions set forth herein, the Swing Line Lender and may, but shall not be obligated to, make loans in reliance upon the Majority agreements of the other Lenders agree otherwiseset forth in this Section 2.04 in Dollars (each such loan, if a “Swing Line Loan”) to the Borrowers from time to time on any Business Day during the Availability Period in an Event aggregate amount not to exceed at any time outstanding the amount of Default occurs then the Swing Line Lender will promptly request Sublimit, notwithstanding the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the fact that such Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way , when aggregated with the Applicable Percentage of Prime Rate Loan or Base Rate Loan (the Outstanding Amount of Revolving Credit Loans and Letter of Credit Obligations of the Revolving Credit Lender acting as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by may exceed the amount of such reduction Revolving Credit Lender’s Revolving Credit Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the Maximum Borrowing Amount, and (ii) the Lenders Revolving Credit Exposure of any Revolving Credit Lender shall make not exceed such adjusting payments amongst them in Revolving Credit Lender’s Revolving Credit Commitment, and provided, further, that the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under Borrowers shall not use the Revolver Facility reflect their respective Rateable Portions proceeds of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the to refinance any outstanding Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and Loan. Within the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay limits and subject to the Agent for the account discretion of the Swing Line Lender such Lender's Rateable Portion to make Swing Line Loans, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.06(a)(ii), and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Revolving Credit Loan. Immediately upon the making of a Swing Line Loan, each Advance requested by Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by a risk participation in such Swing Line Lender.
13.26.2. Except as provided Loan in Subsection 13.26.4, an amount equal to the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect product of such failure):
13.26.3.1. Revolving Credit Lender’s Applicable Percentage times the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line ObligationsLoan.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseRevolving Letter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $5,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on January 12, 1997 if initial Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(v) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 11:00 A.M. (Dallas, Texas time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Borrower hereby authorizes Administrative Agent and Swing Line Lender to charge Borrower's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Borrower from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation interest in any unpaid Swing Line Loans pursuant to Subsection 13.26.4the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (a) any set-off, counter-claim, recoupment, defense or of any other amount from the Relevant right which such Lender may have against Swing Line Lender, Borrower or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Borrower or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each Lender shall promptly return are subject to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Sources: Credit Agreement (CFP Holdings Inc)
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions of this Agreement, the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the agrees to make swing line loans (each a "Swing Line Lender will promptly request Loan" and, --------------- collectively, the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the "Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable") if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter Borrower in Dollars from time ---------------- to time during the Swing Line Commitment shall be treated as reduced Period in an aggregate principal amount at any one time outstanding not to nilexceed the Swing Line Commitment, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan Credit Exposure would not exceed the Swing Line Lender will again promptly request Lender's Revolving Tranche Commitment, (ii) the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account aggregate unpaid balance of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by Loans would not exceed the Swing Line Lender on behalf Commitment, and (iii) the Aggregate Revolving Tranche Exposure of all Lenders would not exceed the Relevant Borrower to repay Aggregate Revolving Tranche Commitments. During the Swing Line Loans made by such Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4Commitment, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed all in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1Agreement. any lack of validity or enforceability Each Swing Line Loan shall mature and be due and payable on the last day of the Relevant Borrower's Interest Period therefor.
(b) The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 2.6 or Article Six;
13.26.2.2. any 6 have not been satisfied and such conditions remain unsatisfied as of the matters referred requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in Section 6.2 or 6.3;
13.26.2.3. its sole discretion, give notice to the Lenders having a Revolving Tranche Commitment and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Tranche Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of any a Default or an Event of Default under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Tranche Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), -------------------- shall be made by all Lenders having Revolving Tranche Commitments pro rata based on each such Lender's Commitment Percentage with respect to its Revolving Tranche Commitment on the exercise Business Day immediately succeeding the giving of any rights by such notice. The proceeds of each Mandatory Borrowing shall be remitted directly to the Agent under Section 13.2; and
13.26.2.4Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender having a Revolving Tranche Commitment irrevocably agrees to make a Revolving Tranche Loan pursuant to each Mandatory Borrowing in the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender notwithstanding: (a "Defaulting Lender"i) fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shallMandatory Borrowing may not comply with the minimum amount for Loans otherwise required hereunder, forthwith upon its receipt (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of any reimbursement Default then exists, (in whole or in partiv) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect Borrowing Date of such payment Mandatory Borrowing, (other than pursuant to Section 2.6 or 6.2)v) the aggregate principal amount of all Loans then outstanding, transfer to (vi) the Aggregate Revolving Tranche Exposure at such other Lender time and (vii) the amount of the Commitments at such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithtime.
Appears in 1 contract
Sources: Revolving Credit Agreement (Total Renal Care Holdings Inc)
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof and in reliance upon the agreements of the other Lenders set forth in this Section 2.2, the Swing Line Lender agrees to make loans in Dollars under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent or any Lender, by notice to the Swing Line Lender and the Majority Lenders agree Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied or waived and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the tenth Domestic Business Day after such Swing Line Loan is made, the date on which the Swing Line Commitment shall have been terminated in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate (or, if the Negotiated Rate is not available, the LIBOR Daily Floating Rate plus the Applicable Margin). The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Section 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”) shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Swing Line Lender will promptly request Domestic Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) whether the amount of such reduction Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans CHAR1\1787260v5 then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(c) Upon each receipt by a further Swing Line Loan Lender of a notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the Relevant Borrower (and for this purpose outstanding balance of the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan Loans (as applicable) from the Lenders pursuant to Section 2.4 to repay that each, a “Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further AdvanceParticipation Amount”). Each Lender unconditionally agrees to pay shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.2 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of a notice from the Administrative Agent, such Lender shall promptly (and, in any event, no later than the Domestic Business Day immediately succeeding the giving of such notice) make available to the Administrative Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in Dollars and in immediately available funds. The Administrative Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever Administrative Agent and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section 2.2 (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Issuing Bank against Swing Line Lender, as the Relevant Borrower.
13.26.3. If a case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender (a "Defaulting Lender") fails shall pay interest to make payment on the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender pursuant from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to Subsection 13.26.1 (i) from the balance thereof for date such amount was due until the time being unpaid being referred third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount upon receipt thereof in like funds as received.
(plus interest as provided belowe) in full (and without in any way limiting Whenever the rights Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in respect of such failure):
13.26.3.1. the connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender shall be entitled pursuant to receive any this Section 2.2, the Administrative Agent will promptly remit such payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amountLender.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS HEALTH Corp)
Swing Line Loans. 13.26.1. Unless the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Subject to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of Agreement, during the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being madeCommitment Period, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled make a Swing Line Loan to receive Borrower in such amount or amounts as Borrower may from time to time request, but not exceeding in aggregate principal amount at any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to time outstanding hereunder the Swing Line Lender at Commitment. Swing Line Loans: (i) shall be payable on the rate payable by Swing Line Loan Maturity Date applicable to each such Swing Line Loan; (ii) shall be made only in U.S. Dollars; (iii) may be repaid or prepaid and reborrowed in accordance with the Relevant Borrower in respect provisions hereof; (iv) may only be made if after giving effect thereto (A) the aggregate principal amount of Swing Line Loans outstanding does not exceed the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may Swing Line Commitment, and (B) the Revolving Credit Exposure would not exceed the Total Commitment Amount; (v) shall not be made if, after giving effect thereto, Borrower would be required to prepay Loans or Cash Collateralize Letters of Credit pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender Section 2.8 hereof; (vi) shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to not be made in U.S. Dollars) or if the one month CDOR BA Rate (in the case the reimbursement is proceeds thereof would be used to be made in Canadian Dollars) for such period. Such payment shall onlyrepay, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for , any unreimbursed outstanding Swing Line Advances in relation Loan and (vii) at no time shall there be more than one (1) borrowing of Swing Line Loans outstanding hereunder, excluding any Cash Sweep Swing Line Loan. Borrower shall have the option, subject to which other Lenders have purchased a participation the terms and conditions set forth herein, to borrow Swing Line Loans, maturing on the applicable Swing Line Loan Maturity Date, by means of Daily LIBOR Rate Loans. NAI-1519170929v11 Borrower shall pay interest pursuant on the unpaid principal amount of each Daily LIBOR Loan outstanding from time to Subsection 13.26.4time, or of any other amount from the Relevant Borrower or any other Person in respect of date thereof until paid, at the Daily LIBOR Rate. Interest on such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In Daily LIBOR Loans shall be payable on the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithLoan Maturity Date.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $15,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on June 30, 1999 if the Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 10:00 A.M. (New York City time) at least one Business Day prior to the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Revolving Lenders to make Revolving Loans that are Alternate Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Revolving Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Revolving Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Revolving Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Alternate Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender receives a payment of any amount in which other Revolving Lenders have purchased participations as contemplated therebyprovided in this paragraph, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the purchase price for such contrary notwithstanding, each Revolving Lender's participation interest in obligation to make Revolving Loans for the relevant unreimbursed purpose of repaying any Refunded Swing Line Advances. Each Lender shall, upon demand by such Loans pursuant to the second preceding paragraph and each Revolving Lender's obligation to purchase a participation in any unpaid Swing Line Lender made Loans pursuant to the Agentimmediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, deliver to the Agent for the account of including (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower Company or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each Revolving Lender shall promptly return are subject to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to (i) maintain as Swing Line Loans hereunder its "Swing Line Loans" (as defined in the Original Credit Agreement) which are outstanding on the Restatement Closing Date and (ii) make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Restatement Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $10,000,000; PROVIDED that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Lender Loans shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1A(v) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and pay absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds thereof directly of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. At all times thereafter the If any portion of any such amount paid (or deemed to be paid) to Swing Line Commitment Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4subsection 10.5. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender as contemplated therebyshall be deemed to, then promptly upon receipt and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated immediately prior to such termination of notification the Revolving Loan Commitments) of the unpaid amount of such fact Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from the AgentSwing Line Lender, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum an amount equal to its respective participation in same day funds at the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.Funding and
Appears in 1 contract
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof and in reliance upon the agreements of the other Lenders set forth in this Section 2.2, the Swing Line Lender agrees to make loans in Dollars under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent or any Lender, by notice to the Swing Line Lender and the Majority Lenders agree Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied or waived and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the tenth Domestic Business Day after such Swing Line Loan is made, the date on which the Swing Line Commitment shall have been terminated in accordance with Section 2.6, and the date on which the Loans shall become due and CHAR1\1889946v5 payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate (or, if the Negotiated Rate is not available, the Term SOFR Daily Floating Rate plus the Applicable Margin). The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Section 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”) shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Swing Line Lender will promptly request Domestic Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) whether the amount of such reduction Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(c) Upon each receipt by a further Swing Line Loan Lender of a notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the Relevant Borrower (and for this purpose outstanding balance of the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan Loans (as applicable) from the Lenders pursuant to Section 2.4 to repay that each, a “Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further AdvanceParticipation Amount”). Each Lender unconditionally agrees to pay shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.2 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of a notice from the Administrative Agent, such Lender shall promptly (and, in any event, no later than the Domestic Business Day immediately succeeding the giving of such notice) make available to the Administrative Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in Dollars and in immediately available funds. The Administrative Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever Administrative Agent and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section 2.2 (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Issuing Bank against Swing Line Lender, as the Relevant Borrower.
13.26.3. If a case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender (a "Defaulting Lender") fails shall pay interest to make payment on the due date therefor of any amount due from it Administrative Agent CHAR1\1889946v5 for the account of the Swing Line Lender pursuant from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to Subsection 13.26.1 (i) from the balance thereof for date such amount was due until the time being unpaid being referred third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount upon receipt thereof in like funds as received.
(plus interest as provided belowe) in full (and without in any way limiting Whenever the rights Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in respect of such failure):
13.26.3.1. the connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender shall be entitled pursuant to receive any this Section 2.2, the Administrative Agent will promptly remit such payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amountLender.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $10,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Lender Loans shall be paid in full no later than that date; provided that the Swing Line LoansLoan Commitment shall expire immediately and without further action on June 30, 1997 if the initial Term Loans are not made on or before that date. The Lenders are irrevocably directed by each Relevant Borrower Amounts borrowed under this subsection 2.1A(v) may be repaid and reborrowed to make any Advance by way of Prime Rate but excluding the Revolving Loan or Base Rate Loan (as applicable) if so requested by Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and pay absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds thereof directly of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. At all times thereafter the If any portion of any such amount paid (or deemed to be paid) to Swing Line Commitment Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may subsection 10.5. If for any reason the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be required deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions its Pro Rata Share (calculated immediately prior to such termination of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Revolving Loan Commitments) of the unpaid amount of such Swing Line Loan the Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender will again promptly request an amount equal to its respective participation in same day funds at the Agent on behalf of the Relevant Borrower (Funding and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower Payment Office. In order to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each further evidence such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full participation (and without in any way limiting prejudice to the rights effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in respect form and substance reasonably satisfactory to such Lender and Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such failure):
13.26.3.1. the Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of Federal Funds Effective Rate for three Business Days and thereafter at the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2Base Rate. In the overdue amount shall bear interest payable by the Defaulting Lender to the event Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation interest in any unpaid Swing Line Loans pursuant to Subsection 13.26.4the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, re-coupment, defense or of any other amount from the Relevant Borrower right which such Lender may have against Swing Line Lender, Company or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each Lender shall promptly return are subject to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Sources: Credit Agreement (NXS I LLC)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender’s outstanding Revolving Loans and Swing Line Lender’s Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender’s Revolving Loan Commitment. As of Default occurs then the Restatement Effective Date, the amount of the Swing Line Lender will promptly request Loan Commitment is $50,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding proportionate reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to such Revolving Lender’s Pro Rata Share of such Swing Line Loan; provided, however that the amount of such Lender’s risk participation shall be adjusted in the manner set forth in Section 2.9D. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect and prior to the termination of the Revolving Loan Commitments, the Revolving Loan Exposure of a Lender shall not exceed its Revolving Loan Commitment. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Borrower hereby authorizes Administrative Agent and Swing Line Lender to charge Borrower’s accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Borrower from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, the request submitted by Swing Line Lender pursuant to the immediately preceding paragraph shall be deemed to be a request by Swing Line Lender that each of the Revolving Lenders fund the amount of its Swing Line Risk Participation in the relevant Swing Line Loan and each Revolving Loan made pursuant to the immediately preceding paragraph shall be deemed payment in respect of such failure):
13.26.3.1Swing Line Risk Participation. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender’s Swing Line Risk Participation as provided in this paragraph, Swing Line Lender shall be entitled to receive recover such amount on demand from such Revolving Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a payment of any payment amount in which other Revolving Lenders have funded Swing Line Risk Participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Revolving Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Revolving Lender’s obligation to fund its Swing Line Risk Participation pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against Swing Line Lender, Borrower or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Borrower or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each Revolving Lender are subject to the condition that (x) Swing Line Lender believed in good faith that all conditions under Section 4 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made, or (y) the satisfaction of any such condition not satisfied had been waived in accordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made. Subject to Section 2.9E, at any time a Lender is a Defaulting Lender, within three (3) Business Days after the request of the Administrative Agent or Swing Line Lender, such Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities shall provide cash collateral or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender other security satisfactory to the Swing Line Lender at the rate payable by the Relevant Borrower (in its sole discretion) in respect of such Defaulting Lender’s obligation to fund its Swing Line Risk Participation (as adjusted pursuant to Section 2.9D); provided, that if such Defaulting Lender fails to provide such cash collateral or other security, the Loan Obligations which gave rise Borrower shall provide, within five (5) Business Days, cash collateral or other security satisfactory to the Swing Line Lender (in its sole discretion) in respect of such overdue amount.
13.26.4Defaulting Lender’s obligation to fund its Swing Line Risk Participation (as adjusted pursuant to Section 2.9D). Such Defaulting Lender and Borrower each hereby grants to the Administrative Agent, for the benefit of the Swing Line Lender and the other Lenders (other than such Defaulting Lender), a Lien on of such Person’s cash collateral or other security (and all proceeds of the foregoing) to secure the Obligations. Cash collateral shall be maintained in blocked, Deposit Accounts with the Administrative Agent and shall be invested in Cash Equivalents reasonably acceptable to the Administrative Agent or held as Cash. If for at any reason time the Administrative Agent determines that any funds held as cash collateral are subject to any right or claim of any Person other than the Administrative Agent or the Swing Line Lender or that the total amount of such funds is less than such Defaulting Lender’s funding obligations in respect of its Swing Line Risk Participation, such Defaulting Lender or Borrower shall, within three (3) Business Days after demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as cash collateral, an Advance may not amount equal to the excess of (x) such aggregate funding obligations over (y) the total amount of funds, if any, then held as cash collateral that the Administrative Agent determines to be made pursuant free and clear of any such right and claim. At the discretion of the Swing Line Lender, such funds shall be applied, to Subsection 13.26.1 the extent permitted under applicable Governmental Authorizations, to reimburse the Swing Line Lender as contemplated thereby, then promptly Lender. The Lien held by the Administrative Agent in such cash collateral shall be released upon receipt the satisfaction of notification each of such fact from the Agent, each Lender shall deliver to the Agent for the account of such following conditions: (a) no Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Loans shall be outstanding, (b) all Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment Loan obligations shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not have been reimbursed repaid in full by the Relevant Borrower for interest on the amount and (c) no Event of such unreimbursed Swing Line ObligationsDefault shall have occurred and be continuing.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions set forth in this Agreement, Swing Line Lender agrees to make Swing Line Loans in Dollars until the Maturity Date in such amounts as Borrower may from time to time request; PROVIDED, HOWEVER, that (i) the aggregate principal amount of all Swing Line Loans shall not exceed the Swing Line Sublimit and (ii) the Equivalent Amount in Dollars of the Outstanding Obligations of each Lender (EXCLUDING any Lender's Competitive Loans and Swing Line Lender's Swing Line Loans) shall not exceed such Lender's Commitment and the Equivalent Amount in Dollars of the Outstanding Obligations of all Lenders shall not exceed the combined Commitments at any time. This is a revolving credit and, subject to the foregoing and the other terms and conditions hereof, Borrower may borrow, prepay and reborrow Swing Line Loans as set forth herein without premium or penalty. Each Swing Line Loan shall be a Base Rate Loan and shall bear interest at the rate of interest (including Applicable Amount, if any) otherwise payable on Base Rate Loans or shall bear interest at such other rate mutually agreeable to Swing Line Lender and Borrower.
(b) Unless notified to the contrary by Swing Line Lender, Borrower may irrevocably request a Swing Line Loan in Dollars on any Business Day in a Minimum Amount therefor by delivering a Request for Extension of Credit therefor by Requisite Notice to Swing Line Lender and Administrative Agent not later than the Requisite Time therefor. Promptly after receipt of such request, Swing Line Lender shall obtain telephonic verification from Administrative Agent that such Swing Line Loan is permitted hereunder. Upon receiving such verification, Swing Line Lender shall make such Swing Line Loan available to Borrower. Without the consent of Requisite Lenders and Swing Line Lender, no Swing Line Loan shall be made if to the actual knowledge of the Swing Line Lender and the Majority Lenders agree otherwise, if an there exists a Default or Event of Default occurs then Default. Upon the making of each Swing Line Loan, each Lender shall be deemed to have purchased from Swing Line Lender a risk participation therein in an amount equal to such Lender's Pro Rata Share TIMES the amount of the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower Loan.
(and for this purpose the c) Swing Line Lender is irrevocably authorized by each Relevant shall be responsible for invoicing Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender interest on the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make Unless and until any Advance by way Swing Line Loan is converted into a Borrowing of Prime Rate Loan or Base Rate Loans or a funding by Lenders of their participation therein, the interest payable on Swing Line Loans is solely for the account of Swing Line Lender.
(d) Borrower shall repay each Swing Line Loan not later than the Requisite Time for payments hereunder upon the earlier of (as applicablei) if so requested demand made by the Swing Line Lender (with a copy to Administrative Agent) and pay (ii) the proceeds thereof Maturity Date. Payments shall be made directly to the Swing Line Lender. At all times thereafter If the Swing Line Commitment shall conditions precedent set forth in SECTION 5.02 can be treated as reduced satisfied, Borrower may request a Borrowing of Committed Loans to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the repay Swing Line Lender will again promptly request pursuant to SECTION 2.02 or, failing to make such request, Borrower shall be deemed to have requested a Borrowing of Base Rate Loans (without regard to the Agent Minimum Amount therefor) on behalf of the Relevant Borrower (and for this purpose the such payment date in a principal amount equal to such payment. Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way shall promptly notify Administrative Agent of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that each Swing Line Loan and the foregoing provisions each payment thereof.
(e) If Borrower fails to timely make (by payment, a Borrowing or a deemed Borrowing) any payment of this Subsection 13.26.1 shall equally apply principal of or interest on any Swing Line Loan to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender, Swing Line Lender shall notify Administrative Agent of such fact and the unpaid amount. Administrative Agent shall promptly notify each Lender of its Pro Rata Share of such unpaid amount by Requisite Notice, and each Lender shall make its Pro Rata Share of such unpaid amount available to Administrative Agent at Administrative Agent's Office not later than the Requisite Time for payments hereunder on the following Business Day. The obligation of each Lender to make such payment shall be absolute and unconditional and shall not be affected by the occurrence of such or any other Event of Default or any other event. Each Lender's payment shall be deemed to be a funding of such Lender's Rateable Portion participation in such Swing Line Loan, and each Lender making such funding shall thereupon acquire a pro rata participation, to the extent of each Advance requested by its payment, in the claim of Swing Line Lender on behalf against Borrower in respect of such payment and shall share, in accordance with that pro rata participation, in any payment made by Borrower with respect to such claim. Any amounts made available by a Lender under its risk participation shall not relieve or otherwise impair the Relevant obligation of Borrower to repay Swing Line Loans made by such Lender for any amount of Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4Loans, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance together with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (herein, and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender amounts made available shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect payable by Borrower upon demand of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount Administrative Agent, and shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line ObligationsDefault Rate.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (Tech Data Corp)
Swing Line Loans. 13.26.1In addition to the other options available to Borrower hereunder, up to $15,000,000 of the Swing Line Lender's Commitment, shall be available for Swing Line Loans subject to the following terms and conditions. Unless Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.11 hereof. All Swing Line Loans shall bear interest at the CBR Rate. In no event shall the Swing Line Lender be required to fund a Swing Line Loan if it would increase the total aggregate outstanding Loans by Swing Line Lender hereunder to an amount in excess of its Commitment. Upon request of the Swing Line Lender, each Lender irrevocably agrees to purchase its Percentage of any Swing Line Loan made by the Swing Line Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of an Default hereunder (provided Swing Line Lender had no knowledge of an Default at the time the Swing Line Loan was funded) provided no Lender shall be required to have total outstanding Loans in an amount greater than its Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Loan made by the purchasing Lender and not by the selling Lender for all purposes under this Agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the Swing Line Lender and all such amounts accruing on or attributable to such Loans for the Majority Lenders agree otherwiseperiod from and after the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the purchasing Lender. If prior to purchasing its Percentage in a Swing Line Loan one of the events described in Section 9.6 or 9.7 shall have occurred and such event prevents the consummation of the purchase contemplated by preceding provisions, each Lender will purchase an undivided participating interest in the outstanding Swing Line Loan in an amount equal to its Percentage of such Swing Line Loan. From and after the date of each Lender's purchase of its participating interest in a Swing Line Loan, if an Event of Default occurs then the Swing Line Lender receives any payment on account thereof, the Swing Line Lender will promptly request distribute to such Lender its participating interest in such amount (appropriately adjusted, in the Agent on behalf case of each Relevant Borrower (interest payments, to reflect the period of time during which such Lender's participating interest was outstanding and for this purpose funded); provided, however, that in the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested event that such payment was received by the Swing Line Lender and pay the proceeds thereof directly is required to be returned to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver will return to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it distributed by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithto it. No Swing Line Loan shall be outstanding for more than five (5) days at a time and Swing Line Loans shall not be outstanding for more than a total of ten (10) days during any month.
Appears in 1 contract
Sources: Unsecured Revolving Credit Agreement (Susa Partnership Lp)
Swing Line Loans. 13.26.1. Unless the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Subject to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of Agreement, during the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being madeCommitment Period, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled make a Swing Line Loan to receive Borrower in such amount or amounts as Borrower may from time to time request, but not exceeding in aggregate principal amount at any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to time outstanding hereunder the Swing Line Lender at Commitment. Swing Line Loans: (i) shall be payable on the rate payable by Swing Line Loan Maturity Date applicable to each such Swing Line Loan; (ii) shall be made only in U.S. Dollars; (iii) may be repaid or prepaid and reborrowed in accordance with the Relevant Borrower in respect provisions hereof; (iv) may only be made if after giving effect thereto (A) the aggregate principal amount of Swing Line Loans outstanding does not exceed the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may Swing Line Commitment, and (B) the Revolving Credit Exposure would not exceed the Total Commitment Amount; (v) shall not be made if, after giving effect thereto, Borrower would be required to prepay Loans or Cash Collateralize Letters of Credit pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender Section 2.8 hereof; (vi) shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to not be made in U.S. Dollars) or if the one month CDOR BA Rate (in the case the reimbursement is proceeds thereof would be used to be made in Canadian Dollars) for such period. Such payment shall onlyrepay, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for , any unreimbursed outstanding Swing Line Advances in relation Loan and (vii) at no time shall there be more than one (1) borrowing of Swing Line Loans outstanding hereunder. Borrower shall have the option, subject to which other Lenders have purchased a participation the terms and conditions set forth herein, to borrow Swing Line Loans, maturing on the applicable Swing Line Loan Maturity Date, by means of Daily LIBOR Rate Loans. Borrower shall pay interest pursuant on the unpaid principal amount of each Daily LIBOR Loan outstanding from time to Subsection 13.26.4time, or of any other amount from the Relevant Borrower or any other Person in respect of date thereof until paid, at the Daily LIBOR Rate. Interest on such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In Daily LIBOR Loans shall be payable on the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithLoan Maturity Date.
Appears in 1 contract
Swing Line Loans. 13.26.1Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Lenders agree otherwiseBorrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, if an Event shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of Default occurs then the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Lender will promptly request Interest Period applicable thereto, the Agent date on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter which the Swing Line Commitment shall be treated as reduced to nilhave been terminated in accordance with Section 2.6, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders date on which the Loans shall make such adjusting payments amongst them in become due and payable pursuant to the manner contemplated provisions hereof, whether by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilityacceleration or otherwise. If any Standby Instrument is thereafter drawn upon which results in a further Each Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Negotiated Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5applicable thereto. The Swing Line Lender shall, forthwith upon its receipt shall disburse the proceeds of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances Loans at its office designated in relation Section 11.2 by crediting such proceeds to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or an account of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In maintained with the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS Caremark Corp)
Swing Line Loans. 13.26.1(a) The Swing Line. Unless Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans in Dollars (each such loan, a “Swing Line Loan”) to the Company from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Majority Lenders agree otherwiseLender acting as Swing Line Lender, if an Event may exceed the amount of Default occurs then such Lender’s Commitment; provided, however, that (i) after giving effect to any Swing Line Loan, (x) the Total Outstandings shall not exceed the Aggregate Commitments, and (y) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, (ii) the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose shall not be under any obligation to make any such Swing Line Loan if any Lender is at such time a Defaulting Lender, unless the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way has entered into arrangements, including the delivery of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Cash Collateral, satisfactory to the Swing Line Lender (in its sole discretion) with the Company or such Defaulting Lender to eliminate such Swing Line Lender’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower Loan then proposed to make any Advance by way of Prime Rate Loan be made or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay all other Swing Line Loans made by such Swing Line Lender.
13.26.2. Except then outstanding as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until which the Swing Line Lender has received payment actual or potential Fronting Exposure, as it may elect in its sole discretion; and provided, further, that the Company shall not use the proceeds of that amount (plus interest as provided below) in full (any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and without in any way limiting subject to the rights other terms and conditions hereof, the Company may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in respect such Swing Line Loan in an amount equal to the product of such failure):
13.26.3.1. Lender’s Applicable Percentage times the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line ObligationsLoan.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (Stericycle Inc)
Swing Line Loans. 13.26.1. Unless Each Multicurrency Lender agrees to purchase its pro rata share (determined --- ---- by its Revolving Multicurrency Commitment Percentage) of an outstanding Multicurrency Swing Line Loan, and the Fronting Bank agrees to purchase its pro rata shares (determined by the aggregate --- ---- amount of the Non-Multicurrency Lenders' Commitment Percentages) on (a) the Business Day on which demand therefor is made by the Multicurrency Swing Line Lender and which made such Multicurrency Swing Line Loan, provided that notice of such demand is given not later than -------- 11:00 a.m. (Applicable Belgium Time) on such Business Day or (b) the Majority Lenders agree otherwise, first Business Day next succeeding such demand if an Event -76- notice of Default occurs then the such demand is given after such time. Upon any such assignment by a Multicurrency Swing Line Lender will promptly request to any other Multicurrency Lender or the Agent on behalf Fronting Bank of each Relevant Borrower (a portion of a Multicurrency Swing Line Loan, such Multicurrency Swing Line Lender represents and for this purpose warrants to such other Multicurrency Lender and the Fronting Bank that such Multicurrency Swing Line Lender is irrevocably authorized the legal and beneficial owner of such interest being assigned by each Relevant Borrower it, but makes no other representation or warranty and assumes no responsibility with respect to do so) for an Advance by way of Prime Rate such Multicurrency Swing Line Loan, the Loan Documents or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay any Obligor. If and to the Swing Line extent that any Multicurrency Lender or the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (Fronting Bank, as applicable) if the case may be, shall not have so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by made the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Multicurrency Swing Line Loan available to the Swing Line Foreign Agent, such Multicurrency Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally Fronting Bank, as the case may be, agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Foreign Agent for the account of such Multicurrency Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon forthwith on demand by such Multicurrency Swing Line Lender made such amount together with interest thereon, for each day from the date of demand by such Multicurrency Swing Line Lender until the date such amount is paid to the Foreign Agent, deliver at the Overnight Rate. If such Multicurrency Lender or the Fronting Bank, as the case may be, shall pay to the Foreign Agent such amount for the account of such Multicurrency Swing Line Lender interest on any Business Day, such amount so paid in respect of principal shall constitute a Multicurrency Swing Line Loan made by such Multicurrency Lender and the Fronting Bank on such Lender's Rateable Share from Business Day for purposes of this Credit Agreement, and the date outstanding principal amount of payment the Multicurrency Swing Line Loan made by such Multicurrency Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender shall be reduced by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for amount on such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line ObligationsBusiness Day.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Multicurrency Revolving Credit and Term Loan Agreement (Samsonite Holdings Inc)
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a "Swing Line Loan" and, collectively, the "Swing Line Loans") to one or more Borrowers from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Majority Company to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Agent, or any Lender by notice to the Swing Line Lender, the Company and the applicable Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day (the "Swing Line Maturity Date") being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 12.2 by crediting such proceeds to an account of the Borrower thereof maintained with the Swing Line Lender or as such Borrower shall otherwise direct in its Borrowing Request therefor.
(b) On any Business Day on which a Swing Line Loan shall be due and payable and shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders agree otherwise, if and the applicable Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Credit Loans made as ABR Advances to such Borrower (each such borrowing, a "Mandatory Borrowing"), shall be made by all Lenders pro rata based on each such Lender's Commitment Percentage on the Swing Line Lender will promptly request Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) the amount of such reduction Mandatory Borrowing may not comply with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(c) Upon each receipt by a further Swing Line Loan Lender of notice of an Event of Default from the Agent pursuant to Section 10.5, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the Relevant Borrower (and for this purpose outstanding balance of the Swing Line Loans (each, a "Swing Line Participation Amount"). Each Lender is irrevocably authorized by the Relevant Borrower to do so) shall also be liable for an Advance amount equal to the product of its Commitment Percentage and any amounts paid by way a Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of Prime Rate any Default or Event of Default or the compliance by any Borrower with any of its obligations under the Loan or Base Rate Loan Documents.
(as applicabled) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice of an Event of Default from the Lenders Agent pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 10.5, such Lender shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay promptly make available to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount at the office of the Agent specified in Section 12.2, in lawful money of the United States and in immediately available funds. The Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of the Relevant Borrower promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by hold harmless the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying the Agent any amount such Lender is required by notice from the Agent to pay in accordance with this Section upon receipt of notice of an Event of Default from the Agent pursuant to Section 10.5 (except in respect of losses, liabilities or other obligations suffered by the Agent or the Issuing Bank against Swing Line Lender, as the Relevant Borrower.
13.26.3. If a case may be, resulting from the gross negligence or willful misconduct of the Agent or the Swing Line Lender, as the case may be), and such Lender (a "Defaulting Lender") fails shall pay interest to make payment on the due date therefor of any amount due from it Agent for the account of the Swing Line Lender pursuant from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to Subsection 13.26.1 (i) from the balance thereof for date such amount was due until the time being unpaid being referred third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Agent shall distribute such interest payments to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount upon receipt thereof in like funds as received.
(plus interest as provided belowe) in full (and without in any way limiting Whenever the rights Agent is reimbursed by a Borrower for the account of the Swing Line Lender for any payment in respect of such failure):
13.26.3.1. the connection with Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise Loans made to such overdue amount.
13.26.4. If for any reason Borrower and such payment relates to an Advance may not be made amount previously paid by a Lender pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated therebythis Section, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of will promptly remit such Swing Line Lender in immediately available funds the purchase price for payment to such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $5,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for Loan Commitment shall result in an Advance by way automatic corresponding reduction of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender Loan Commitment to the amount of the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Swing Line LoansLender. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly Loans shall have a final maturity date acceptable to the Swing Line Lender. At The Swing Line Loan Commitment shall expire on the Revolving Loan Commitment Termination Date and all times thereafter Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on December 11, 1997 if the Term Loans and the initial Revolving Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(iii) may be treated as reduced prepaid, repaid and reborrowed to nilbut excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Lender's Revolver Loans and the Swing Line Loan Commitment shall be increased subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the lesser of the Revolving Loan Commitments then in effect and (subject to subsection 2.4B(iii)(h)) the then applicable Borrowing Base. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such reduction Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Revolving Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Revolving Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender and the other Revolving Lenders. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Revolving Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of Federal Funds Effective Rate for three Business Days and thereafter at the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2Base Rate. In the overdue amount shall bear interest payable by the Defaulting Lender to the event Swing Line Lender at the rate payable by the Relevant Borrower receives a payment of any amount in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the other Revolving Lenders have purchased participations as provided in this paragraph, Swing Line Lender as contemplated thereby, then shall promptly upon receipt of notification distribute to each such other Lender its Pro Rata Share of such fact from payment. Anything contained herein to the Agentcontrary notwithstanding, each Lender shall deliver Revolving Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the Agent for the account of such second preceding paragraph and each Revolving Lender's obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other right which such Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed may have against Swing Line Advances. Each Lender shallLender, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower Company or any other Person in respect for any reason what soever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each Revolving Lender shall promptly return are subject to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions hereof, the Swing Line Lender and Bank may in its discretion make swing line loans in Dollars (the Majority Lenders agree otherwise, if “Swing Line Loans”) to the Borrowers from time to time during the Revolver Commitment Period in an Event aggregate outstanding principal amount up to the amount of Default occurs then the Swing Line Lender will promptly request Commitment for periods not to exceed seven days as requested by the Agent on behalf of each Relevant Borrower (Borrowers and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower agreed to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nilBank; provided, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further that, no Swing Line Loan shall be made if, after giving effect to the Swing Line Lender will again promptly request the Agent on behalf making of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that such Swing Line Loan and the simultaneous application of the proceeds thereof, (x) the aggregate Revolver Exposure of all the Banks would exceed the aggregate amount of the Revolver Commitments of all of the Banks or (y) the aggregate amount of all Revolving Loans made by a Bank plus such Bank’s Commitment Percentage of the amount of Swing Line Loans and Letter of Credit Obligations then outstanding would exceed its Revolver Commitment. Within the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to limits, the Agent for Borrowers may during the account of Revolver Commitment Period borrow, repay and reborrow under the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4Commitment, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions limitations hereof. The interest rate for a Swing Line Loan shall be the Daily LIBOR Rate plus the Applicable Margin (or such rate that is mutually agreed to by the Borrower’ Representative and the Swing Line Bank in writing at the time the Swing Line Loan is made) or, if the Cash Management Agreement (as defined in clause (i) below are in affect, at the rate determined in accordance with the Cash Management Agreement.
(b) The Borrowers may request a Swing Line Loan to be made on any Business Day. Each request for a Swing Line Loan shall be in the form of this Agreement under all circumstances including:
13.26.2.1. any lack a Notice of validity Borrowing (or enforceability of a request by telephone immediately confirmed in writing, it being understood that the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of Swing Line Bank may rely on the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence authority of any Default or Event individual making such telephonic request without the necessity of Default or the exercise receipt of any rights such written confirmation) and received by the Agent under Section 13.2; and
13.26.2.4. not later than 11:00 a.m. (Philadelphia time) on the absence of any demand for payment being Business Day such Swing Line Loan is to be made, specifying in each case (i) the amount to be borrowed, (ii) the requested borrowing date, and (iii) the date such Swing Line Loan is to be repaid, if applicable (the “Swing Line Repayment Date”). The request for such Swing Line Loan shall be irrevocable. Provided that all applicable conditions precedent contained herein have been satisfied, the Swing Line Bank shall, not later than 4:00 p.m., Philadelphia time, on the date specified in the Borrowers’ request for such Swing Line Loan, make such Swing Line Loan by crediting the Borrowers’ deposit account with the Swing Line Bank.
(c) The obligation of the Borrowers to repay the Swing Line Loans shall be evidenced by a promissory note of the Borrowers dated the date hereof, payable to the order of the Swing Line Bank in the principal amount of the Swing Line Commitment and substantially in the form of Exhibit A-2 (as amended, supplemented or otherwise modified from time to time, the “Swing Line Note”).
(d) Swing Line Loans and accrued interest thereon shall be repaid on the earlier of (1) the Revolver Termination Date, (2) the Swing Line Repayment Date for such Swing Line Loan or (3) the seventh day after the date such Swing Line Loan was made (any proof such date being the “Swing Line Conversion Date”). Unless the Borrowers shall have notified the Agent prior to 11:00 a.m., Philadelphia time, on such Swing Line Conversion Date that the Borrowers intend to repay such Swing Line Loan with funds other than the proceeds of claim being fileda Revolving Loan, the Borrowers shall be deemed to have given notice to the Agent requesting the Banks to make Revolving Loans which shall earn interest at the Base Rate in effect on the Swing Line Conversion Date in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, and subject to satisfaction or waiver of the conditions specified in Section 4.2, the Banks shall, on the Swing Line Conversion Date, make Revolving Loans, which shall earn interest at the Base Rate, in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, the proceeds of which shall be applied directly by the Agent to repay the Swing Line Bank for such Swing Line Loan plus accrued interest thereon; and provided, further, that if for any Security being enforced, any proceeding being commenced or any judgment being obtained reason the proceeds of such Revolving Loans are not received by the Swing Line Lender or Bank on the Issuing Swing Line Conversion Date in an aggregate amount equal to the amount of such Swing Line Loan plus accrued interest, the Borrowers shall reimburse the Swing Line Bank against on the Relevant Borrowerday immediately following the Swing Line Conversion Date, in same day funds, in an amount equal to the excess of the amount of such Swing Line Loan over the aggregate amount of such Revolving Loans, if any, received plus accrued interest thereon.
13.26.3(e) In the event that the Borrowers shall fail to repay the Swing Line Bank as provided in this Section 2.3(e) in an amount equal to the amount required under Section 2.3(d), the Agent shall promptly notify each Bank of the unpaid amount of such Swing Line Loan and of such Bank’s respective participation therein in an amount equal to such Bank’s pro rata share of such Swing Line Loan (based on its Commitment Percentage). If a Lender Each Bank shall make available to the Agent for payment to the Swing Line Bank an amount equal to its respective participation therein (a "Defaulting Lender") including without limitation its pro rata share of accrued but unpaid interest thereon), in same day funds, at the office of the Agent specified in such notice, not later than 11:00 a.m., Philadelphia time, on the Business Day after the date the Agent notifies each Bank. In the event that any Bank fails to make payment on available to the due date therefor Agent the amount of any such Bank’s participation in such unpaid amount due from it for the account of as provided herein, the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender Bank shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue recover such amount shall bear on demand from such Bank together with interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender thereon at a rate per annum equal to the Federal Funds Effective Rate (for each day during the period between the Swing Line Conversion Date and the date on which any Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the case reimbursement is Agent its pro rata share of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to be made in U.S. Dollarsmake available to the Agent its pro rata share of such unpaid amount on the Swing Line Conversion Date. The Agent shall distribute to each Bank which has paid all amounts payable by it under this Section 2.3(e) or with respect to the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for unpaid amount of any Swing Line Loan, such period. Such payment shall only, however, be made Bank’s pro rata share of all payments received by the Lenders Agent from the Borrowers in the event and to the extent repayment of such Swing Line Lender Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has not been reimbursed paid all amounts payable by it under this Section 2.3(e) shall have a direct right to repayment of such amounts from the Borrowers subject to the procedures for repaying Banks set forth in full by this Section 2.3(e) and the Relevant Borrower for interest on provisions of Section 9.8.
(f) In the event the Revolver Commitments are terminated in accordance with the terms hereof, the Swing Line Commitment shall also be terminated automatically. In the event the Borrowers reduce the Revolver Commitment to less than the Swing Line Commitment, the Swing Line Commitment shall immediately be reduced to an amount equal to the Revolver Commitment. In the event the Borrowers reduce the Revolver Commitment to less than the outstanding principal amount of the Swing Line Loans, the Borrowers shall immediately repay the amount of such unreimbursed by which the outstanding Swing Line ObligationsLoans exceeds the Swing Line Commitment as so reduced plus accrued interest thereon.
13.26.5. The (g) At no time shall there be more than two outstanding Swing Line Lender shallLoans. Each Swing Line Loan shall be in an original principal amount of $100,000 or a whole multiple thereof.
(h) The Borrowers shall have the right at any time and from time to time to prepay the Swing Line Loans, forthwith upon its receipt of any reimbursement (in whole or in part) by , without premium or penalty (but in any event subject to Section 2.18), upon prior written, facsimile or telephonic notice to the Relevant Borrower for any unreimbursed Swing Line Advances Bank given no later than 11:00 a.m., Philadelphia time, on the date of any proposed prepayment. Each notice of prepayment shall specify the Swing Line Loan to be prepaid and the amount to be prepaid (which shall be in relation the principal amount of $100,000 or in integral amounts of $50,000 in excess thereof) , shall be irrevocable and shall commit the Borrowers to which other Lenders have purchased a participation prepay such amount on such date, with accrued interest thereon and any amounts owed under Section 2.18 hereof.
(i) In addition to making Swing Line Loans pursuant to Subsection 13.26.4the foregoing provisions of this Section 2.3, or of any other amount without the requirement for a specific request from the Relevant Borrower or any other Person in respect of such payment (other than Borrowers pursuant to Section 2.6 or 6.22.3(b), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Bank may make Swing Line LenderLoans to the Borrowers in accordance with the provisions of the agreements between the Borrowers and the Swing Line Bank relating to the Borrowers’ deposit, without interest sweep and other accounts at the Swing Line Bank and related arrangements and agreements regarding the management and investment of the Borrowers’ cash assets as in effect from time to time (the “Cash Management Agreements”) to the extent that interest is of the daily aggregate net negative balance in the Borrowers’ accounts which are subject to the provisions of the Cash Management Agreements. Swing Line Loans made pursuant to this Section 2.3(i) in accordance with the provisions of the Cash Management Agreements shall (i) be subject to the limitations as to aggregate amount set forth in Section 2.3(a), (ii) not be subject to the limitations as to number or individual amount set forth in Sections 2.3(g) or the repayment provisions of Section 2.3(d), (iii) be payable by such the Borrowers, both as to principal and interest, at the times set forth in the Cash Management Agreements (but in no event later than the Revolver Termination Date), (iv) not be made at any time after the Swing Line Lender Bank has notice of the occurrence of a Default or Event of Default, (v) if not repaid by the Borrowers in connection therewithaccordance with the provisions of the Cash Management Agreements, be subject to each Bank’s obligation to purchase participating interests therein pursuant to Section 2.3(e), and (vi) except as provided in the foregoing subsections (i) through (v), be subject to all of the terms and conditions of this Section 2.3.
Appears in 1 contract
Sources: Credit Agreement (Tasty Baking Co)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5A, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $5,000,000; PROVIDED that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4A(ii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Lender Loans shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1A(ii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and pay absolute discretion, deliver to Agent (with a copy to Company), no later than 10:30 A.M. (California time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting the Lenders to make Revolving Loans under subsection 2.1A(i) that are Base Rate Loans on such Funding Date in an amount equal to each Lender's Pro Rata Share of the amount of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds thereof directly of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. At all times thereafter the If any portion of any such amount paid (or deemed to be paid) to Swing Line Commitment Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender through Agent, each Lender shall deliver to Agent for delivery to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to Agent for delivery to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation interest in any unpaid Swing Line Loans pursuant to Subsection 13.26.4the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or of any other amount from the Relevant Borrower right which such Lender may have against Swing Line Lender, Company or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in respect the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; PROVIDED that such payment obligations of each Lender are subject to the condition that (X) Swing Line Lender believed in good faith that all conditions under Section 4 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in accordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made. Notwithstanding the foregoing, a Lender shall not have any obligation to acquire a participation in a Swing Line Loan if an Event of Default shall have occurred (other than pursuant to Section 2.6 or 6.2), transfer to a non- material default under subsections 8.4 and 8.5) and be continuing at the time such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, Swing Line Loan was made and such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to have notified the extent that interest is not payable by such Swing Line Lender in connection therewithwriting (such notice to be made pursuant to subsection 10.8), at least one Business Day prior to the time such Swing Line Loan was made, that such Event of Default has occurred and that such Lender will not acquire participations in Swing Line Loans made while such Event of Default is continuing.
Appears in 1 contract
Sources: Credit Agreement (Oakley Inc)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with ---------------- respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $5,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made -------- pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the -------- Swing Line Loan Commitment shall expire immediately and without further action on May 15, 2001 if the Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(ii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the lesser of the Revolving Loan Commitments then in effect and the Borrowing Base then in effect. With respect to any Swing Line Loans that have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 12:00 Noon (New York City time) at least one Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given. Borrower hereby authorizes the giving of any such notice and the making of any such Revolving Loans. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Borrower agrees to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Borrower from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be deemed to, and hereby agrees to, have purchased an assignment of such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective assignment in same day funds at the Administrative Agent's Office. In order to further evidence such assignment (and without prejudice to the effectiveness of the assignment provisions set forth above), each Lender agrees to enter into an Assignment Agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to the Swing Line Lender and such Lender. If any Lender fails to make available to Swing Line Lender the amount of such Lender's assignment as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4Base Rate. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest assignments as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to Subsection 13.26.4, or the second preceding paragraph and each Lender's obligation to purchase an assignment of any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other amount from the Relevant right which such Lender may have against Swing Line Lender, Borrower or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Borrower or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each Lender shall promptly return are subject to such the condition that (x) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, collectively, the "Swing Line Loans") to the Borrower from time to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment Amount, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Revolving Credit Exposure would not exceed the Swing Line Lender's Revolving Credit Commitment Amount, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment Amount, and (iii) the Aggregate Credit Exposure would not exceed the Aggregate Revolving Credit Commitment Amount. Unless During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. No Swing Line Loan shall be made prior to the making of the first Revolving Credit Loans on the first Borrowing Date.
(b) The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless arrangements to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loan shall have been made for the benefit of the Swing Line Lender and such arrangements are satisfactory to the Swing Line Lender. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Lenders agree otherwiseBorrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, if an Event shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of Default occurs then the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the earliest to occur of the last day of the Swing Line Lender will promptly request Interest Period applicable thereto, the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay fifth Business Day prior to the Swing Line Lender Revolving Credit Commitment Termination Date, the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter date on which the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased have been voluntarily terminated by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan Borrower or the Swing Line Lender will again promptly request in accordance with Section 2.6, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) Upon each receipt by a Lender of notice of an Event of Default from the Administrative Agent on behalf of the Relevant Borrower pursuant to Section 10.5, such Lender shall purchase unconditionally, irrevocably, and severally (and for this purpose not jointly) from the Swing Line Lender is irrevocably authorized a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount (the "Swing Line Participation Amount") equal to the product of (i) its Com- mitment Percentage, and (ii) the aggregate outstanding principal balance of the Swing Line Loans plus all accrued and unpaid interest thereon. Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Relevant Borrower pursuant to do sothis Section 2.3 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be absolute and unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) for In furtherance of subsection (c) immediately above, upon each receipt by a Lender of notice of an Advance by way Event of Prime Rate Loan or Base Rate Loan (as applicable) Default from the Lenders Administrative Agent pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 10.5, such Lender shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay promptly make available to the Administrative Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of promptly upon receipt thereof in like funds as received. Each Lender shall indemnify and hold harmless the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever Administrative Agent and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying the Administrative Agent any amount such Lender is required to pay in accordance with this Section 2.3 (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Issuing Bank against Swing Line Lender, as the Relevant Borrower.
13.26.3. If a case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender (a "Defaulting Lender") fails shall be required to make payment on pay interest to the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender pursuant from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum equal to Subsection 13.26.1 (i) from the balance thereof for date such amount was due until the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount"third day therefrom, the Federal Funds Rate, and (ii) then until thereafter, the Federal Funds Rate plus 2%, payable upon demand by the Swing Line Lender has received payment of that amount (plus Lender. The Administrative Agent shall distribute such interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender payments to the Swing Line Lender at upon receipt thereof in like funds as received.
(e) Whenever the rate payable Administrative Agent is reimbursed by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated therebyBorrower, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in connection therewithpursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $30,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on April 30, 1997 if the Term Loans are not purchased pursuant to the Master Assignment Agreement on or before that date. Amounts borrowed under this subsection 2.1A(iv) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i)(a), Swing Line Lender (i) may, at any time in its sole and absolute discretion, and (ii) shall, at least once every seven days, deliver to Administrative Agent (with a copy to Company), no later than 1:00 P.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Revolving Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If any Standby Instrument is thereafter drawn Immediately upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account funding of the Swing Line Lender such Lender's Rateable Portion of each Advance requested Loans by the Swing Line Lender, each Revolving Lender on behalf of the Relevant Borrower to repay shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans made by in an amount equal to its Pro Rata Share of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender.
13.26.2, each Revolving Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. Except In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender's participation as provided in Subsection 13.26.4this paragraph, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Revolving Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender receives a payment of any amount in which other Revolving Lenders have funded their purchase of a participation as contemplated therebyprovided in this paragraph, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Any such distribution shall be made to a Revolving Lender at its primary address set forth below its name on the purchase price for appropriate signature page hereof or at such other address as such Revolving Lender may request. Anything contained herein to the contrary notwithstanding, each Revolving Lender's participation interest in obligation to make Revolving Loans for the relevant unreimbursed purpose of repaying any Refunded Swing Line Advances. Each Lender shall, upon demand by such Loans pursuant to the second preceding paragraph and each Revolving Lender's obligation to fund a purchase of a participation in any unpaid Swing Line Lender made Loans pursuant to the Agentimmediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, deliver to the Agent for the account of including without limitation (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower Company or any other Person for any reason what soever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in respect the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such payment obligations of each Revolving Lender are subject to the satisfaction of one of the following (other than pursuant X) Swing Line Lender believed in good faith that all conditions under Section 4 to Section 2.6 or 6.2)the making of the applicable Swing Line Loans to be refunded were satisfied at the time Swing Line Loans were made, transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In (Y) the event that any receipt by the Issuing Bank satisfaction of any reimbursement such condition not satisfied had been waived in accordance with subsection 10.6 or other amount is found to have been a transfer in fraud (Z) such Revolving Lender had actual knowledge, by receipt of creditors or a preferential payment under any applicable insolvency legislation or is otherwise notices required to be returneddelivered to Revolving Lenders pursuant to subsection 6.1(ix) or otherwise, that any such condition had not been satis fied and such Revolving Lender shall promptly return failed to such notify Swing Line Lender and Administrative Agent in writing that it had no obligation to make Revolving Loans until such condition was satisfied (any portion such notice to be effective as of the date of receipt thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithand Administrative Agent).
Appears in 1 contract
Swing Line Loans. 13.26.1In addition to the other options available to Borrower hereunder, up to $10,000,000 of the Swing Line Lender's commitment, shall be available for Swing Line Loans subject to the following terms and conditions. Unless Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with SECTION 2.9 hereof. All Swing Line Loans shall bear interest at the CBR Rate. In no event shall the Swing Line Lender be required to fund a Swing Line Loan if it would increase the total aggregate outstanding Loans by Swing Line Lender hereunder plus its Percentage of Facility Letter of Credit Obligations to an amount in excess of its Commitment. Upon request of the Swing Line Lender, each Lender irrevocably agrees to purchase its Percentage of any Swing Line Loan made by the Swing Line Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of an Event of Default hereunder provided no Lender shall be required to have total outstanding Loans plus its Percentage of Facility Letters of Credit to be in an amount greater than its Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Loan made by the purchasing Lender and not by the selling Lender for all purposes under this agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the Swing Line Lender and all such amounts accruing on or attributable to such Loans for the Majority Lenders agree otherwise, if an Event period from and after the date of Default occurs then such purchase shall be paid when due by the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) the Administrative Agent for an Advance by way the benefit of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line purchasing Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced If prior to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results purchasing its Percentage in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf one of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided events described in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.SECTION
Appears in 1 contract
Sources: Unsecured Revolving Credit Agreement (Centerpoint Properties Trust)
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied or waived and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been terminated in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders agree otherwise, if and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Section 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”) shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Swing Line Lender will promptly request Domestic Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) whether the amount of such reduction Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(c) Upon each receipt by a further Swing Line Loan Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf of the Relevant Borrower (and for this purpose the outstanding Swing Line Lender is irrevocably authorized by Loans (including accrued interest thereon) in an amount equal to the Relevant Borrower to do so) for an Advance by way product of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan its Commitment Percentage and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender such Lender's Rateable Portion shall also be liable for an amount equal to the product of each Advance requested its Commitment Percentage and any amounts paid by the Swing Line Lender on behalf of the Relevant Borrower pursuant to repay Swing Line Loans made by such Swing Line Lender.
13.26.2this Section 2.2 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and Such liabilities shall be performed in accordance with the terms unconditional and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred without regard to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights compliance by the Agent Borrower with any of its obligations under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant BorrowerLoan Documents.
13.26.3. If (d) In furtherance of Section 2.2(c), upon each receipt by a Lender (a "Defaulting Lender") fails of notice from the Administrative Agent, such Lender shall promptly make available to make payment on the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred immediately preceding sentence to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of that such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section 2.2 (plus except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest as provided below) in full (and without in any way limiting to the rights Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in respect full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such failure):
13.26.3.1. amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender Lender. The Administrative Agent shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear distribute such interest payable by the Defaulting Lender payments to the Swing Line Lender at upon receipt thereof in like funds as received.
(e) Whenever the rate payable Administrative Agent is reimbursed by the Relevant Borrower in respect for the account of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in immediately available funds pursuant to this Section 2.2, the purchase price for Administrative Agent will promptly remit such payment to such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS HEALTH Corp)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the ------------------ limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Effective Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $10,000,000; provided that -------- any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire -------- immediately and without further action on April 30, 2000 if the Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(v) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to the parties thereto. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender receives a payment of any amount in which other Revolving Lenders have purchased participations as contemplated therebyprovided in this paragraph, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the purchase price for such contrary notwithstanding, each Revolving Lender's participation interest in obligation to make Revolving Loans for the relevant unreimbursed purpose of repaying any Refunded Swing Line Advances. Each Lender shall, upon demand by such Loans pursuant to the second preceding paragraph and each Revolving Lender's obligation to purchase a participation in any unpaid Swing Line Lender made Loans pursuant to the Agentimmediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, deliver to the Agent for the account of including (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower Company or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each Revolving Lender are subject to the ------- condition that (X) Swing Line Lender believed in good faith that all conditions ---- under Section 4 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made, or (Y) the satisfaction of any such condition not satisfied had been waived in accordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
(vi) Increases of the Term Loans or Revolving Loan Commitments. At the -------------------------------------------------------------- mutual discretion of Company and Lead Arranger, Company may request in writing at any time during the period from the Effective Date to and including the second anniversary of the Effective Date that (x) the then effective aggregate principal amount of any Type or Types of Term Loans be increased, and/or (y) the then effective aggregate principal amount of Revolving Loan Commitments be increased; provided that (1) the aggregate principal amount of the increases in -------- Term Loans and/or Revolving Loan Commitments pursuant to this subsection 2.1A(vi) shall not exceed $50,000,000, (2) Company may not make more than two requests for such increases in Term Loans and/or Revolving Loan Commitments, (3) no Event of Default or Potential Event of Default shall have occurred and be continuing or occurs as a result of such increases in Term Loans and/or Revolving Loan Commitments, (4) such increases shall be subject to any prior approvals or exemptions required under any applicable Gaming Laws, and (5) Company shall, and shall cause its Restricted Subsidiaries to, execute and deliver such documents and instruments and take such other actions (including, without limitation, obtaining appropriate endorsements to title insurance policies) as may be reasonably requested by Administrative Agent in connection with such increases. Any request under this subsection 2.1A(vi) shall be submitted by Company to Administrative Agent (which shall promptly forward copies to Lenders), specify the proposed effective date and amount of such increase and be accompanied by an Officer's Certificate stating that no Event of Default or Potential Event of Default exists or will occur as a result of such increase. Company may also specify any fees offered to those Lenders (the "Increasing Lenders") which agree to increase the principal amount of their applicable Term Loans or Revolving Loan Commitments, as the case may be, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its applicable Term Loans or Revolving Loan Commitment, as the case may be. No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its applicable Term Loans or Revolving Loan Commitment, as the case may be. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the applicable Term Loans or Revolving Loan Commitments, as the case may be, pursuant to this subsection 2.1A(vi). No Lender which elects not to increase the principal amount of its Term Loan or Revolving Loan Commitment, as the case may be, may be replaced in respect of its existing applicable Term Loans or Revolving Loan Commitment, as the case may be, as a result thereof without such payment Lender's consent. Each Increasing Lender shall as soon as practicable specify the amount of the proposed increase which it is willing to assume. Company may accept some or all of the offered amounts or designate new lenders who qualify as Eligible Assignees and which are reasonably acceptable to Administrative Agent as additional Lenders hereunder in accordance with this subsection 2.1A(iv) (other than each such new lender being a "New Lender"), which New Lender may assume all or a portion of the increase in the aggregate principal amount of the applicable Term Loans or Revolving Loan Commitments, as the case may be. Company and Administrative Agent shall have discretion jointly to adjust the allocation of the increased aggregate principal amount of the applicable Term Loans or Revolving Loan Commitments, as the case may be, among Increasing Lenders and New Lenders. Each New Lender designated by Company and reasonably acceptable to Administrative Agent shall become an additional party hereto as a New Lender concurrently with the effectiveness of the proposed increase in the aggregate principal amount of the applicable Term Loans or Revolving Loan Commitments, as the case may be, upon its execution of an instrument of Joinder, in each case in form and substance satisfactory to Administrative Agent. Subject to the foregoing, any increase requested by Company shall be effective as of the date proposed by Company and shall be in the principal amount equal to (i) the principal amount which Increasing Lenders are willing to assume as increases to the principal amount of their applicable Term Loans or Revolving Loan Commitments, as the case may be, plus (ii) the principal amount offered by ---- New Lenders with respect to the applicable Term Loans or Revolving Loan Commitments, as the case may be, in either case as adjusted by Company and Administrative Agent pursuant to Section 2.6 or 6.2this subsection 2.1A(vi), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required All new Term Loans to be returned, made under this subsection 2.1A(vi) shall be made to Company on the same day as such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to increase in the extent that interest is not payable by such Swing Line Lender in connection therewith.applicable Term Loans under this subsection 2.1A(vi)
Appears in 1 contract
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions of this Agreement, the Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and, --------------- collectively, the "Swing Line Loans") to the Borrower from time to time during ---------------- the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment Amount, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Revolving Credit Exposure would not exceed the Swing Line Lender's Revolving Credit Commitment Amount, (ii) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment Amount, and (iii) the Aggregate Credit Exposure would not exceed the Aggregate Revolving Credit Commitment Amount. Unless During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. No Swing Line Loan shall be made prior to the making of the first Revolving Credit Loans on the first Borrowing Date.
(b) The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless arrangements to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loan shall have been made for the benefit of the Swing Line Lender and such arrangements are satisfactory to the Swing Line Lender. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Lenders agree otherwiseBorrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, if an Event shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of Default occurs then the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the earliest to occur of the last day of the Swing Line Lender will promptly request Interest Period applicable thereto, the Agent Revolving Credit Commitment Termination Date, the date on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter which the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased have been voluntarily terminated by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan Borrower or the Swing Line Lender will again promptly request in accordance with Section 2.7, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) Upon each receipt by a Lender of notice of an Event of Default from the Administrative Agent on behalf of the Relevant Borrower pursuant to Section 10.5, such Lender shall purchase unconditionally, irrevocably, and severally (and for this purpose not jointly) from the Swing Line Lender is irrevocably authorized a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount (the "Swing Line Participation Amount") ------------------------------- equal to the product of (i) its Commitment Percentage, and (ii) the aggregate outstanding principal balance of the Swing Line Loans plus all accrued and unpaid interest thereon. Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Relevant Borrower pursuant to do sothis Section 2.3 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be absolute and unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) for In furtherance of subsection (c) immediately above, upon each receipt by a Lender of notice of an Advance by way Event of Prime Rate Loan or Base Rate Loan (as applicable) Default from the Lenders Administrative Agent pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 10.5, such Lender shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay promptly make available to the Administrative Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of promptly upon receipt thereof in like funds as received. Each Lender shall indemnify and hold harmless the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever Administrative Agent and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying the Administrative Agent any amount such Lender is required to pay in accordance with this Section 2.3 (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Issuing Bank against Swing Line Lender, as the Relevant Borrower.
13.26.3. If a case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender (a "Defaulting Lender") fails shall be required to make payment on pay interest to the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender pursuant from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum equal to Subsection 13.26.1 (i) from the balance thereof for date such amount was due until the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount"third day therefrom, the Federal Funds Rate, and (ii) then until thereafter, the Federal Funds Rate plus 2%, payable upon demand by the Swing Line Lender has received payment of that amount (plus Lender. The Administrative Agent shall distribute such interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender payments to the Swing Line Lender at upon receipt thereof in like funds as received.
(e) Whenever the rate payable Administrative Agent is reimbursed by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated therebyBorrower, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in connection therewithpursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Kohls Corporation)
Swing Line Loans. 13.26.1A. Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time and subject to the other terms and conditions hereof, to make a portion of the Pro Rata Commitments available to Borrowers from time to time during the period from the Closing Date to but excluding the second day prior to the Commitment Termination Date by making Swing Line Loans to Borrowers in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.9, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Pro Rata Loans and Bid Rate Loans may exceed its Pro Rata Commitment. Unless Swing Line Lender's commitment to make Swing Line Loans to Borrowers pursuant to this subsection 2.3A is herein called its "SWING LINE LOAN COMMITMENT", and the original amount of the Swing Line Loan Commitment is $25,000,000 and may not be increased to an amount in excess of $25,000,000 without the consent of Requisite Lenders and Swing Line Lender. Amounts borrowed under this subsection 2.3A shall be Base Rate Loans and may be repaid and reborrowed to but excluding the second day prior to the Commitment Termination Date on which second day all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans by each Borrower shall be paid in full by such Borrower. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the following limitations in the amounts and during the periods indicated:
(a) in no event shall the Total Utilization at any time exceed the Pro Rata Commitments then in effect; and
(b) any reduction of the Pro Rata Commitments made pursuant to subsection 2.8A which reduces the aggregate Pro Rata Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Pro Rata Commitments, as so reduced, without any further action on the part of Swing Line Lender.
B. Whenever any Borrower desires that Swing Line Lender make a Swing Line Loan under subsection 2.3A, it shall deliver to Swing Line Lender a Notice of Swing Line Borrowing no later than 1:00 P.M. (New York City time) on the proposed Funding Date (which shall be a Business Day). The Notice of Swing Line Borrowing shall specify (i) the proposed Funding Date, (ii) the amount of the Swing Line Loan requested (which shall be no less than $1,000,000) and (iii) that the Total Utilization (after giving effect to the proposed borrowing) does not exceed the Total Pro Rata Commitments then in effect.
C. With respect to any Swing Line Loans which have not been voluntarily prepaid by the Applicable Borrower pursuant to subsection 2.8A, Swing Line Lender (i) may at any time an Event of Default has occurred and is continuing in its sole and absolute discretion, and (ii) shall on the last Business Day of each month deliver to each Lender (with a copy to the Applicable Borrower), no later than 2:00 P.M. (New York City time) at least one Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Pro Rata Borrowing given by the Applicable Borrower) requesting Lenders to make Pro Rata Loans that are Base Rate Loans on such Funding Date in an aggregate amount equal to the amount of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Each Lender (other than the Swing Line Lender) shall make the amount of its Pro Rata Loan available to Administrative Agent by depositing the amount thereof in same day funds in Administrative Agent's Account on the next Business Day. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Pro Rata Loans made by Lenders other than Swing Line Lender shall be immediately delivered to Swing Line Lender (and not to any Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Pro Rata Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Pro Rata Loan made by Swing Line Lender and the Majority Lenders agree otherwise, if an Event such portion of Default occurs then the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans but shall be outstanding as Pro Rata Loans. If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender will promptly request the Agent should be recovered by or on behalf of each Relevant any Borrower (and for this purpose the from Swing Line Lender is irrevocably authorized in bankruptcy, by each Relevant Borrower to do so) assignment for an Advance by way the benefit of Prime Rate Loan creditors or Base Rate Loan (as applicable) from otherwise, the Lenders pursuant to Section 2.4 to repay to loss of the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if amount so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 subsection 9.5. If, as may be required a result of any bankruptcy or similar proceeding with respect to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders Borrower, Pro Rata Loans are not made pursuant to Section 2.4 this subsection 2.3C in an amount sufficient to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply any amounts owed to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or if Swing Line Lender shall so request each Lender for any reason, Swing Line Lender shall be deemed to have sold without recourse or representation or warranty, and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the unpaid amount together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender (other than Swing Line Lender) shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at Administrative Agent's Account. In the event any such Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue recover such amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact on demand from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender together with interest thereon at a rate per annum equal to the Federal Funds Rate for the first five days and thereafter at the Base Rate in effect from time to time. Anything contained herein to the contrary notwithstanding, the obligation of each Lender (other than Swing Line Lender) to make Pro Rata Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each such Lender's obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, any Borrower or any other Person for any reason whatsoever; (b) the occurrence or continuance of an Event of Default or a Potential Event of Default; (c) any adverse change in the case reimbursement is business, operations, properties, assets, or condition (financial or otherwise) of Company or any of its Subsidiaries; (d) any breach of this Agreement by any party hereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be made in U.S. Dollars) any of the foregoing; PROVIDED, HOWEVER, that no Lender shall have any obligation to make a Pro Rata Loan for the purpose of repaying, or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall onlypurchase any participation in, however, be made by the Lenders in the event and any Swing Line Loan to the extent such Swing Line Lender has not been reimbursed in full by Loan increased the Relevant Borrower for interest on Total Utilization (after giving effect to the amount repayment of any Loans with the proceeds of such unreimbursed Swing Line Obligations.
13.26.5. The Loan) and was made even though Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by had actual knowledge that the Relevant Borrower for any unreimbursed Swing Line Advances in relation conditions to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to making such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is Loan were not payable by such Swing Line Lender in connection therewithsatisfied.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions of this Agreement, and further subject to the agreement of each Swing Line Lender and the Majority Lenders agree otherwiseBorrower with respect to the Negotiated Rate to be applied, if an Event such Swing Line Lender agrees to make swing line loans (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time on any Business Day during the Revolving Credit Commitment Period (but excluding the ten consecutive Business Days immediately preceding the Revolving Credit Maturity Date), provided that immediately after making each Swing Line Loan, (i) the aggregate unpaid balance of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter Loans would not exceed either the Swing Line Commitment shall be treated as reduced to nilAmount or Swing Line Sublimit Commitment Amount, (ii) the Aggregate Credit Exposure would not exceed the Aggregate Revolving Credit Commitment Amount and (iii) the Aggregate Credit Exposure denominated in Alternative Currency would not exceed the Alternative Currency Sublimit. During the foregoing period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4Commitment, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed all in accordance with the terms and conditions of this Agreement under all circumstances including:Agreement.
13.26.2.1(b) A Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless arrangements to eliminate such Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan shall have been made for the benefit of such Swing Line Lender and such arrangements are satisfactory to such Swing Line Lender. A Swing Line Lender shall not make a Swing Line Loan if, no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, it shall have received written notice from any lack Credit Party that the conditions set forth in Section 6 with respect thereto have not been satisfied.
(c) A Swing Line Lender may by written notice given to the Administrative Agent not later than 10:00 a.m. on any Business Day notify the Administrative Agent that such Swing Line Lender is requesting that each Lender, and the Administrative Agent may (with the consent of validity Required Lenders) or enforceability shall (at the request of Required Lenders) by written notice given to such Swing Line Lender not later than 10:00 a.m. on any Business Day require that each Lender, at the option of such Swing Line Lender or the Administrative Agent, as the case may be, (i) make a Revolving Credit Loan in an amount equal to its Commitment Percentage of the Relevant Borrower's obligations under outstanding principal balance of, and accrued and unpaid interest on, the Swing Line Loans, or (ii) purchase, unconditionally and irrevocably, without recourse or warranty, an undivided participating interest in the outstanding principal balance of, and accrued and unpaid interest on, the Swing Line Loans in an amount equal to its Commitment Percentage thereof. In case the Swing Line Lender, providing such written notice, made the Swing Line Loan denominated in an Alternative Currency, such Swing Line Lender shall be receiving requested funds from each Lender, in such Alternative Currency, unless such Swing Line Lender (at its option) shall have specified in a notice given pursuant to this Section 2.6 or Article Six;
13.26.2.22.3 that it will require reimbursement in Dollars. any In either such case (i) the Administrative Agent shall notify each Lender of the matters details thereof and of the amount of such Lender’s Revolving Credit Loan or participation interest, as the case may be, and (ii) each Lender shall, whether or not any Default shall have occurred and be continuing, any representation or warranty shall be accurate, any condition to the making of any loan hereunder shall have been fulfilled, or any other matter whatsoever, make the Revolving Credit Loan required to be made by it, or purchase the participation required to be purchased by it, under this paragraph by wire transfer of immediately available funds to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, (A) in the event that such Lender receives such notice prior to 12:00 noon on any Business Day, by no later than 3:00 p.m. on such Business Day, or (B) in the event that such Lender receives such notice at or after 12:00 noon on any Business Day, by no later than 1:00 p.m. on the immediately succeeding Business Day. Any Loans made pursuant to this paragraph (c) shall, for all purposes hereof, be deemed to be Revolving Credit Loans referred to in Section 6.2 2.1 and made pursuant to Section 2.5, and the Lenders’ obligations to make such Loans shall be absolute and unconditional. The Administrative Agent will make such Loans, or 6.3;
13.26.2.3the amount of such participations, as the case may be, available to the Applicable Swing Line Lender by promptly crediting or otherwise transferring the amounts so received, in like funds and in like currency, to such Swing Line Lender. Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.3 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be absolute and unconditional and without regard to the occurrence of any Default or Event of Default or the exercise of any rights compliance by the Borrower with any of its obligations under the Loan Documents.
(d) Each Lender shall indemnify and hold harmless the Administrative Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the and each Swing Line Lender or the Issuing Bank from and against the Relevant Borrower.
13.26.3. If a Lender any and all losses, liabilities (a "Defaulting Lender") fails to make payment including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the due date therefor part of such Lender to pay, or from any delay in paying the Administrative Agent any amount due from it for the account of the Swing Line such Lender pursuant is required to Subsection 13.26.1 pay in accordance with this Section 2.3 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender except in respect of such failure):
13.26.3.1. losses, liabilities or other obligations suffered by the Administrative Agent or a Swing Line Lender, as the case may be, to the extent resulting from the gross negligence or willful misconduct of the Administrative Agent or such Swing Line Lender, as the case may be, as determined by a court of competent jurisdiction in a final and non-appealable decision), and such Lender shall be entitled required to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear pay interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Administrative Agent for the account of such Swing Line Lender from the date such amount was due until paid in immediately available funds full, on the purchase price for unpaid portion thereof, at a rate of interest per annum equal to (i) from the date such Lender's participation interest in amount was due until the relevant unreimbursed Swing Line Advances. Each Lender shallthird day therefrom, the Federal Funds Rate, and (ii) thereafter, the Federal Funds Rate plus 2%, payable upon demand by such Swing Line Lender made to the Agent, deliver to the Lender. The Administrative Agent for the account of shall distribute such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds payments to such Swing Line Lender by such Lender at a rate per annum equal to upon receipt thereof in like funds as received.
(e) Whenever the Federal Funds Rate (in the case reimbursement Administrative Agent is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made reimbursed by the Lenders in Borrower, for the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount account of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in connection therewithpursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Sources: Credit Agreement (KOHLS Corp)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Effective Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $30,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on May 31, 1997 if the Term Loans are not purchased pursuant to the Master Assignment Agreement on or before that date. Amounts borrowed under this subsection 2.1A(iv) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the following limitations in the amounts and during the periods indicated:
(1) in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect; and
(2) (i) for 30 consecutive days during each period of twelve consecutive months through the last day of Fiscal Year 1997, the sum of (1) the aggregate outstanding principal amount of all Revolving Loans plus (2) the aggregate outstanding principal amount of all Swing Line Loans shall not exceed $110,000,000; and (ii) thereafter for 30 consecutive days during each period of twelve consecutive months, the sum of (1) the aggregate outstanding principal amount of all Revolving Loans plus (2) the aggregate outstanding principal amount of all Swing Line Loans shall not exceed $100,000,000 or, upon and after any Asset Sale of Cala the Net Cash Proceeds of which are not less than $25,000,000, $75,000,000. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender (i) may, at any time in its sole and absolute discretion, and (ii) shall, at least once every seven days, 49 deliver to Agent (with a copy to Company), no later than 1:00 P.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Agent and Swing Line Lender to charge Company's accounts with Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Revolving Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under subsection 11.5. Immediately upon the Revolver Facility reflect their respective Rateable Portions funding of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further each Swing Line Loan by Swing Line Lender, each Revolving Lender shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated without giving effect to clauses (d) and (e) of the definition of Revolving Loan Exposure) of the unpaid amount together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line Lender will again promptly request an amount equal to its respective participation in same day funds at the Agent on behalf of the Relevant Borrower (Funding and for this purpose the Swing Line Payment Office. In order to evidence such participation each Revolving Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to enter into a participation agreement at the Agent for the account request of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect form and substance reasonably satisfactory to all parties. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such failure):
13.26.3.1. the Revolving Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Revolving Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender receives a payment of any amount in which other Revolving Lenders have purchased participations as contemplated therebyprovided in this paragraph, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. 50 Anything contained herein to the purchase price for such contrary notwithstanding, (i) each Revolving Lender's participation interest in obligation to make Revolving Loans for the relevant unreimbursed purpose of repaying any Refunded Swing Line Advances. Each Lender shall, upon demand by such Loans pursuant to the second preceding paragraph and each Revolving Lender's obligation to purchase a participation in any unpaid Swing Line Lender made Loans pursuant to the Agentimmediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, deliver to the Agent for the account of including without limitation (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower Company or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in respect the business, operations, properties, assets, condition (financial or otherwise) or prospects of Holdings or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such payment obligations of each Revolving Lender are subject to the satisfaction of one of the following: (other than pursuant X) Swing Line Lender believed in good faith that all conditions under Section 4 to Section 2.6 or 6.2)the making of the applicable Swing Line Loans to be refunded, transfer to were satisfied at the time such other Swing Line Loans were made, (Y) such Revolving Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any had actual knowledge, by receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise notices required to be returneddelivered to Revolving Lenders pursuant to subsection 6.1(ix) or otherwise, that any such condition had not been satisfied and such Revolving Lender shall promptly return failed to such notify Swing Line Lender and Agent in writing that it had no obligation to make Revolving Loans until such condition was satisfied (any portion such notice to be effective as of the date of receipt thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender and Agent), or (Z) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 11.6; and (ii) Swing Line Lender shall not be obligated to make any Swing Line Loans if it has elected not to do so after the occurrence and during the continuation of a Potential Event of Default or Event of Default.
Appears in 1 contract
Swing Line Loans. 13.26.1(a) The Swing Line. Unless Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Revolving Credit Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Majority Lenders agree otherwiseLender acting as Swing Line Lender, if an Event may exceed the amount of Default occurs then such Lender’s Revolving Credit Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility at such time, and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender at such time, plus such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Lender’s Revolving Credit Commitment, and provided further that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only at a rate based on the Base Rate. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender will promptly request a risk participation in such Swing Line Loan in an amount equal to the Agent on behalf product of each Relevant Borrower (and for this purpose such Revolving Credit Lender’s Applicable Revolving Credit Percentage times the amount of such Swing Line Loan. Notwithstanding the foregoing, the Swing Line Lender may (in its sole discretion) determine not to provide any Swing Line Loans to the Borrower. Furthermore, before making any Swing Line Loans (if at such time any Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way a Deteriorating Lender), the Swing Line Lender may condition the provision of Prime Rate Loan such Swing Line Loans on its receipt of Cash Collateral or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay similar security satisfactory to the Swing Line Lender (in its sole discretion) from either the Borrower or such Deteriorating Lender (without any obligation of such Deteriorating Lender to provide such Cash Collateral or similar security) in respect of such Deteriorating Lender’s risk participation in such Swing Line Loans as set forth below. The Borrower and/or such Deteriorating Lender hereby grants to the Administrative Agent, for the benefit of the Swing Line LoansLender, a security interest in all such Cash Collateral and all proceeds of the foregoing. The Lenders Cash Collateral shall be maintained in blocked deposit accounts at ▇▇▇▇▇ Fargo and may be invested in Cash Equivalents reasonably acceptable to the Administrative Agent. If at any time the Administrative Agent determines that any funds held as Cash Collateral are irrevocably directed subject to any right or claim of any Person other than the Administrative Agent for the benefit of the Swing Line Lender or that the total amount of such funds is less than the aggregate risk participation of such Deteriorating Lender in the relevant Swing Line Loan, the Borrower and/or such Deteriorating Lender will, promptly upon demand by each Relevant Borrower the Administrative Agent, pay to make the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate risk participation over (y) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of any Advance by way of Prime Rate Loan or Base Rate Loan such right and claim. If the Lender that triggers the Cash Collateral requirement under this paragraph ceases to be a Deteriorating Lender (as applicable) if so requested determined by the Swing Line Lender and pay the proceeds thereof directly to in good faith), or if the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as Sublimit has been permanently reduced to nilzero, the Swing Line Lender's Revolver Commitment funds held as Cash Collateral shall thereafter be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay returned to the Agent Borrower or the Deteriorating Lender, whichever provided the funds for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line LenderCash Collateral.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless In the case of a Notice of Loan after the Closing Date, each Borrower and each Lender hereby authorize the Swing Line Lender and at any time prior to the Majority Lenders agree otherwiseFacility Termination Date to make Swing Line Loans in the amount of the requested Swing Line Loan available to the Borrowers; provided, if an Event however, that (i) on the requested date of Default occurs then borrowing the aggregate amount of the sum of (x) the Swing Line Lender will promptly request Loans made since the Agent on behalf last Settlement Date less the amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan collections or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay payments applied to the Swing Line Lender Loans since the last Settlement Date plus (y) the amount of the requested Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower , does not exceed $20,000,000, (ii) after giving effect to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so the requested by the Swing Line Lender Loan, the Revolving Exposure shall not exceed the Maximum Borrowing Amount, and pay (iii) the Borrowers shall not use the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the to refinance any outstanding Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Loan. Each Swing Line Loan shall be considered for all purposes hereof as a Revolving Loan hereunder and shall be subject to all the foregoing provisions of this Subsection 13.26.1 terms and conditions applicable to other Revolving Loans (except that (i) no Swing Line Loan shall equally apply be eligible to each such further Advance. Each Lender unconditionally agrees to pay be a SOFR Loan, (ii) all payments on Swing Line Loans shall be payable to the Agent solely for the account of the Swing Line Lender such Lender's Rateable Portion of , and (iii) the Borrowers must repay each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided Loan in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification full within seven (7) days or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any upon demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 Lender), and shall be secured as an "overdue amount") then until Obligation hereunder. The Swing Line Lender shall not make and shall not be obligated to make a Swing Line Loan if the Swing Line Lender has received payment actual knowledge that one or more of the applicable conditions precedent set forth in Section 8.2 will not be satisfied on the requested funding date. The Swing Line Lender shall not otherwise be required to determine whether the applicable conditions precedent set forth in Section 8.2 have been satisfied as of the requested borrowing date prior to making a Swing Line Loan. The Swing Line Lender shall not be obligated to make a Swing Line Loan if any Lender is at that amount (plus interest as provided below) in full (and without in any way limiting the rights of time a Defaulting Lender, unless the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender has entered into agreements reasonably satisfactory to the Swing Line Lender at with the rate payable by Borrowers and/or such Lender to eliminate the Relevant Borrower in Swing Line Lender’s Fronting Exposure with respect of to the Defaulting Lender (after giving effect to Section 2.15(f)) arising from either the Swing Line Loan Obligations proposed or future Swing Line Loans as to which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders will have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person potential Fronting Exposure in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Defaulting Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit and Security Agreement (Ramaco Resources, Inc.)
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans in Dollars under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent or any Lender, by notice to the Swing Line Lender and the Majority Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied or waived and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been terminated in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders agree otherwise, if and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Section 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”) shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Swing Line Lender will promptly request Domestic Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) whether the amount of such reduction Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(c) Upon each receipt by a further Swing Line Loan Lender of a notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the Relevant Borrower (and for this purpose outstanding balance of the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan Loans (as applicable) from the Lenders pursuant to Section 2.4 to repay that each, a “Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further AdvanceParticipation Amount”). Each Lender unconditionally agrees to pay shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.2 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of a notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in Dollars and in immediately available funds. The Administrative Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever Administrative Agent and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section 2.2 (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Issuing Bank against Swing Line Lender, as the Relevant Borrower.
13.26.3. If a case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender (a "Defaulting Lender") fails shall pay interest to make payment on the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender pursuant from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to Subsection 13.26.1 (i) from the balance thereof for date such amount was due until the time being unpaid being referred third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount upon receipt thereof in like funds as received.
(plus interest as provided belowe) in full (and without in any way limiting Whenever the rights Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in respect of such failure):
13.26.3.1. the connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender shall be entitled pursuant to receive any this Section 2.2, the Administrative Agent will promptly remit such payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amountLender.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS HEALTH Corp)
Swing Line Loans. 13.26.1In addition to the other options available to Borrower hereunder, up to $40,000,000 of the Swing Line Lender’s Commitment, shall be available for Swing Line Loans subject to the following terms and conditions. Unless Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.10 hereof. All Swing Line Loans shall bear interest at the ABR Rate. In no event shall the Swing Line Lender and be required to fund a Swing Line Loan if it would increase the Majority Lenders agree otherwisetotal aggregate outstanding Loans by Swing Line Lender hereunder plus its Percentage of Facility Letter of Credit Obligations to an amount in excess of its Commitment or if it would cause the Allocated Facility Amount to exceed the Aggregate Commitment. Each Swing Line Loan shall be paid in full by the Borrower on or before the fifth (5th) day after the Borrowing Date for such Swing Line Loan. In addition, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the i) may at any time in its sole discretion with respect to any outstanding Swing Line Lender is irrevocably authorized by each Relevant Borrower to do soLoan, or (ii) for an Advance by way shall on the fifth (5th) day after the Borrowing Date of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the any Swing Line Loan, require each Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to including the Swing Line Lender. At all times thereafter ) to make a Loan in the amount of such Lender’s Percentage of such Swing Line Commitment Loan (including, without limitation, any interest accrued and unpaid thereon), for the purpose of repaying such Swing Line Loan. Not later than noon (Chicago time) on the date of any notice received pursuant to this Section 2.14, each Lender shall make available its required Loan, in funds immediately available in Chicago to the Administrative Agent at its address specified pursuant to Article XIV. Revolving Loans made pursuant to this Section 2.14 shall initially be treated ABR Loans and thereafter may be continued as reduced ABR Loans or converted into LIBOR Loans in the manner provided in Section 2.11 and subject to nil, the other conditions and limitations set forth in this Article II. Unless a Lender shall have notified the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required , prior to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If its making any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower Loan, that any applicable condition precedent set forth in Sections 5.1 or 5.2 had not then been satisfied, such Lender’s obligation to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders make Loans pursuant to this Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower 2.14 to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are shall be unconditional, continuing, irrevocable and absolute and shall not be subject to affected by any qualification circumstances, including, without limitation, (a) any set-off, counterclaim, recoupment, defense or exception whatsoever and shall be performed in accordance with other right which such Lender may have against the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being madeAdministrative Agent, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or any other Person, (b) the Issuing Bank against occurrence or continuance of a Default or Unmatured Default, (c) any adverse change in the Relevant Borrower.
13.26.3. If a Lender condition (a "Defaulting Lender"financial or otherwise) fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4Borrower, or of (d) any other amount from the Relevant Borrower circumstances, happening or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amountevent whatsoever. In the event that any receipt by Lender fails to make payment to the Issuing Bank Administrative Agent of any reimbursement amount due under this Section 2.14, the Administrative Agent shall be entitled to receive, retain and apply against such obligation the principal and interest otherwise payable to such Lender hereunder until the Administrative Agent receives such payment from such Lender or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or such obligation is otherwise required fully satisfied. In addition to be returnedthe foregoing, if for any reason any Lender fails to make payment to the Administrative Agent of any amount due under this Section 2.14, such Lender shall promptly return be deemed, at the option of the Administrative Agent, to such Swing Line Lender any portion thereof previously transferred to it by such have unconditionally and irrevocably purchased from the Swing Line Lender, without recourse or warranty, an undivided interest to and participation in the extent that interest is applicable Swing Line Loan in the amount of such payment not payable made by such Lender, and such interest and participation may be recovered from such Lender together with interest thereon at the Federal Funds Effective Rate for each day during the period commencing on the date of demand and ending on the date such amount is received. Swing Line Lender Loans may be outstanding for a maximum of ten (10) days during any calendar month. On the Facility Termination Date, the Borrower shall repay in connection therewithfull the outstanding principal balance of the Swing Line Loans.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Subject to all of the terms and conditions hereof, Harr▇▇ ▇▇▇st and Savings Bank ("Harr▇▇ ▇▇▇k") agrees to make loans ("Swing Line Loans") to each Borrower under a swing line of credit ("Swing Line"); provided, however, that the aggregate amount of Swing Line Loans at any time outstanding to all Borrowers taken together shall not exceed the Swing Line Lender and Commitment; provided further, however, that the Majority Lenders agree otherwiseaggregate amount of the Revolving Loans, if an Event of Default occurs then the Swing Line Lender will promptly request Loans and the Agent L/C Obligations outstanding at any one time from all the Borrowers taken together shall not at any time exceed the lesser of the Commitments then in effect or the Available Borrowing Base as then determined and computed for all the Borrowers; provided still further, however, that the aggregate amount outstanding at any time on behalf of each Relevant Borrower (Revolving Loans and for this purpose the Swing Line Lender is irrevocably authorized by Loans made to each Relevant Borrower to do so) Borrower, and L/C Obligations in respect of Letters of Credit issued for an Advance by way of Prime Rate Loan such Borrower's sole or joint account, shall not exceed such Borrower's Available Borrowing Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loansthen determined and computed. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced available to nil, the Borrowers and may be availed of by each Borrower from time to time and borrowings thereunder may be repaid and used again during the period ending on the Termination Date. Without regard to the face principal amount of the Swing Line Lender's Revolver Commitment shall be increased Note, the actual principal amount at any time outstanding and owing by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent Borrowers on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion Note on any date during the period ending on the Termination Date shall be the sum of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay all Swing Line Loans then or theretofore made by thereon through such date less all payments actually received thereon through such date. Each Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and Loan shall be performed in accordance with due and payable on the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability last day of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant BorrowerInterest Period selected therefor.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Lenders agree otherwiseBorrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, if an Event shall have determined that the conditions set forth in Section 5 and/or Section 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of Default occurs then the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Lender will promptly request Interest Period applicable thereto, the Agent date on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter which the Swing Line Commitment shall be treated as reduced to nilhave been terminated in accordance with Section 2.6, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders date on which the Loans shall make such adjusting payments amongst them in become due and payable pursuant to the manner contemplated provisions hereof, whether by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilityacceleration or otherwise. If any Standby Instrument is thereafter drawn upon which results in a further Each Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Negotiated Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5applicable thereto. The Swing Line Lender shall, forthwith upon its receipt shall disburse the proceeds of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances Loans at its office designated in relation Section 11.2 by crediting such proceeds to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or an account of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In maintained with the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS Caremark Corp)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time and subject to the other terms and conditions hereof, to make a portion of the Revolving Commitments available to Company from time to time during the period from the Effective Date to but excluding the fifth Business Day prior to the Commit ment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5A(iv), notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Revolving Commitment. The original amount of the Swing Line Loan Commitment is $3,000,000; provided that any reduction of the Commitments made pursuant to subsection 2.4A or 2.4B which reduces the aggregate Revolving Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Revolving Commitments, as so reduced, without any further action on the part of Company or Swing Line Lender. Each Swing Line Loan shall be due and payable not more than five Business Days after the Funding Date of such Swing Line Loan. The Swing Line Loan Commitment shall expire on the fifth Business Day prior to the Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1B may be repaid and reborrowed to but excluding the fifth Business Day prior to the Commitment Termination Date. Swing Line Lender shall not be obligated to make any Swing Line Loans if it has elected not to do so after the occurrence and during the Majority Lenders agree otherwise, if continuation of a Potential Event of Default of which it is aware or an Event of Default occurs then the Default. On Friday of each week, Swing Line Lender will promptly request notify the Administrative Agent on behalf of the amount of Swing Line Loans then outstanding and the Administrative Agent shall notify each Relevant Borrower (and for Lender of the amount of Swing Line Loans then outstanding. Anything contained in this purpose Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Commitments at any time exceed the Revolving Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender is irrevocably authorized may, at any time in its sole and absolute discretion, deliver to Lenders (with a copy to Company), no later than 8:30 A.M. (Pacific time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by each Relevant Borrower Company) requesting Lenders to do so) for an Advance by way of Prime Rate Loan or make Revolving Loans that are Base Rate Loan Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (as applicablethe "Refunded Swing Line Loans") from outstanding on the date such notice is given which Swing Line Lender requests Lenders pursuant to Section 2.4 prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Swing Line Lender to charge Company's account with Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or other wise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 subsection 10.5. If, as may be required a result of any bankruptcy or similar proceeding with respect to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders Company, Revolving Loans are not made pursuant to Section 2.4 this subsection 2.1B in an amount sufficient to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply any amounts owed to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans, each Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated with out giving effect to clauses (d) and (e) of the definition of Loan Exposure) of the unpaid amount together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to evidence such partici pation each Lender agrees to enter into a participation agreement at the request of Swing Line Lender in form and substance reason ably satisfactory to all parties. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwith standing, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loan pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation interest in any unpaid Swing Line Loan pursuant to Subsection 13.26.4the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (a) any set-off, counterclaim, re coupment, defense or of any other amount from the Relevant Borrower right which such Lender may have against Swing Line Lender, Company or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in respect the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided if such unpaid Swing Line Loan increased Total Utilization of Commitments (after giving effect to the repayment of any Revolving Loan with the proceeds of such payment (other than pursuant to Section 2.6 or 6.2Swing Line Loan), transfer such obligation of each Lender is subject to such other the condition that one of the following must have occurred: (X) Swing Line Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event did not have actual knowledge that any of the conditions under Section 4 to the making of the applicable unpaid Swing Line Loans were not satisfied at the time such unpaid Swing Line Loans were made, (Y) such Lender had actual knowledge by receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise notices required to be returneddelivered to Lenders pursuant to subsection 6.1(x) or otherwise, that any such condition had not been satisfied and such Lender shall promptly return failed to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such notify Swing Line Lender in connection therewithwriting that it had no obligation to make Revolving Loans until such condition was satisfied (any such notice to be effective as of the date of receipt thereof by Swing Line Lender), or (Z) the satisfaction of any such condition not satisfied had been waived in accordance with subsection 10.6 prior to or at the time such unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Restatement Effective Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5C, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $30,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on July 31, 2003 if the Term Loans are not made (and/or continued) on or before that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. The proceeds of each Swing Line Loan shall be made available to Borrower as directed by it (with the proceeds to be used by Borrower as it may determine), it being understood and agreed that Borrower shall be obligated with respect to each Swing Line Loan for the repayment thereof and all amounts owing with respect thereto. Anything contained in this Agreement to the contrary notwithstanding, in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Lenders with a Revolving Loan Commitment to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests such Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by such Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. Borrower hereby authorizes Administrative Agent and Swing Line Lender to charge Borrower's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Borrower from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender with a Revolving Loan Commitment shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans, together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender with a Revolving Loan Commitment shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each such Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable Base Rate. In the event Swing Line Lender receives a payment of any amount in which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, the obligation of each Lender with a Revolving Loan Commitment to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and the obligation of each Lender with a Revolving Loan Commitment to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by the Relevant any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Advance may Event of Default or a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Holdings or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not be made pursuant similar to Subsection 13.26.1 to reimburse any of the Swing Line foregoing; provided that such obligations of each such Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver are subject to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate condition that (in the case reimbursement is to be made in U.S. DollarsX) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not received a written notice from Administrative Agent or any Lender that has not been reimbursed rescinded that there is a Potential Event of Default or an Event of Default in full by existence hereunder prior to the Relevant Borrower for interest on the amount of time such unreimbursed Refunded Swing Line Obligations.
13.26.5. The Loan or Unpaid Swing Line Lender shall, forthwith upon its receipt Loans were made or (Y) the satisfaction of any reimbursement (such condition not satisfied had been waived in whole accordance with subsection 10.6 prior to or in part) by at the Relevant Borrower for any unreimbursed time such Refunded Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement Loans or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such unpaid Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithLoans were made.
Appears in 1 contract
Sources: Credit Agreement (Dominos Inc)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Tranche A Revolving Loan Commitments available to Borrower from time to time during the period from the Restatement Effective Date to but excluding the Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5A, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Tranche A Revolving Loans and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Tranche A Revolving Loan Commitment. The original amount of the Swing Line Loan Commitment is $20,000,000; provided that the amount of the Swing Line Loan Commitment is subject to reduction as provided in clause (b) of the next paragraph. The Swing Line Loan Commitment shall expire on the Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Commitment Termination Date. Without limiting any of the foregoing, Borrower and Lenders acknowledge and agree that Swing Line Lender may, in its sole discretion and without any obligation to do so, make Swing Line Loans (i) from time to time in an amount sufficient to pay to Managing Agent and Lenders any principal, interest, fees and expenses required hereunder which are not paid when due; provided that Borrower shall be deemed to have submitted an appropriate Notice of Borrowing therefor and the Majority proceeds of such Swing Line Loan shall not be advanced to Borrower but shall be paid directly to Managing Agent for application in accordance with the terms hereof and (ii) at any time upon the request of Borrower and in the sole discretion of Swing Line Lender (and as long as (i) at least one Business Day has passed since the occurrence of the most recent Event of Default of which Lenders agree otherwisehave knowledge and (ii) Requisite Lenders have not given notice to Swing Line Lender not to make Swing Line Loans hereunder), if and in any amount (subject to the limits set forth in the following paragraph) determined by Swing Line Lender in its sole discretion (an "Interim Advance") regardless of whether an Event of Default occurs then shall have occurred and be continuing or Borrower would not be entitled to borrow hereunder upon submission of an appropriate Notice of Borrowing therefor; provided further that anything to the contrary in this Agreement and the other Loan Documents notwithstanding, Swing Line Loans (including, without limitation, Interim Advances) made pursuant to the preceding sentence shall constitute Swing Line Loans for all purposes hereunder, including, without limitation, for purposes of complying with limitations set by the Tranche A Revolving Loan Commitments and the Borrowing Base, the making of Refunded Swing Line Loans and the purchase of participations therein by Lenders in accordance with the terms hereof. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (Loans and for this purpose the Swing Line Lender is irrevocably authorized by Loan Commitment shall be subject to the following limitations in the amounts and during the periods indicated:
(a) in no event shall the Total Utilization of Tranche A Revolving Commitments at any time exceed the lesser of (i) the Tranche A Revolving Loan Commitments and (ii) the Borrowing Base, in each Relevant Borrower to do socase as then in effect;
(b) for an Advance by way any reduction of Prime Rate the Tranche A Revolving Loan or Base Rate Loan (as applicable) from the Lenders Commitments made pursuant to Section 2.4 subsections 2.4A(ii) or 2.4A(iii) which reduces the aggregate Tranche A Revolving Loan Commitments to repay to an amount less than the then current amount of the Swing Line Lender Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower Loan Commitment to make the amount of the Tranche A Revolving Loan Commitments, as so reduced, without any Advance by way further action on the part of Prime Rate Loan Borrower, Managing Agent or Base Rate Loan Swing Line Lender; and
(as applicablec) if so requested by in no event shall the aggregate amount of Swing Line Loans exceed the Swing Line Commitment as then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4A(i), Swing Line Lender may, at any time in its sole and pay absolute discretion, and, in any event, shall, on the fifth Business Day after such Swing Line Loan was made, deliver to Managing Agent (with a copy to Borrower), no later than 12:00 Noon (New York time) at least one Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Lenders to make Tranche A Revolving Loans that are Index Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds thereof directly of such Tranche A Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Managing Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Tranche A Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Tranche A Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Tranche A Revolving Loans and shall be due under the Tranche A Revolving Note of Swing Line Lender. At all times thereafter the If any portion of any such amount paid (or deemed to be paid) to Swing Line Commitment Lender should be recovered by or on behalf of Borrower from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 subsection 10.5. If, as may be required a result of any bankruptcy or similar proceeding with respect to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders Borrower, Tranche A Revolving Loans are not made pursuant to Section 2.4 this subsection 2.1A(iii) in an amount sufficient to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply any amounts owed to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans, each Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the unpaid amount together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the office of Swing Line Lender located at the Payment Office. In order to evidence such participation each Lender agrees to enter into a participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to all parties. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2Index Rate. the overdue amount shall bear interest payable by the Defaulting Lender Anything contained herein to the contrary notwithstanding, (i) each Lender's obligation to make Tranche A Revolving Loans for the purpose of repaying any Refunded Swing Line Lender at Loans pursuant to the rate payable by second preceding paragraph and each Lender's obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may immediately preceding paragraph shall be absolute and unconditional and shall not be made pursuant to Subsection 13.26.1 to reimburse the affected by any circumstance, including without limitation (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender as contemplated therebyLender, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in respect the business, operations, properties, assets, financial condition or prospects of Borrower or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such payment (obligations of each Lender, other than pursuant such obligations with respect to Interim Advances, are subject to the condition that (X) Swing Line Lender believed in good faith that all conditions under Section 2.6 or 6.2), transfer 4 to such other Lender such other Lender's Rateable Share the making of such reimbursement the applicable Refunded Swing Line Loans or other amount. In unpaid Swing Line Loans, as the event that any case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made, (Y) such Lender had actual knowledge, by receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise notices required to be returneddelivered to Lenders pursuant to subsection 6.1(ix) or otherwise, that any such condition had not been satisfied and such Lender shall promptly return failed to such notify Swing Line Lender and Agent in writing that it had no obligation to make Tranche A Revolving Loans until such condition was satisfied (any portion such notice to be effective as of the date of receipt thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithand Managing Agent), or (Z) the satisfaction of any such condition not satisfied had been waived by Requisite Lenders prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made; and (ii) Swing Line Lender shall not be obligated to make any Swing Line Loans if it has elected not to do so after the occurrence and during the continuation of a Potential Event of Default or Event of Default.
Appears in 1 contract
Sources: Credit Agreement (Hartmarx Corp/De)
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions of this Agreement, the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the agrees to make swing line loans (each a "Swing Line Lender will promptly request Loan" and, collectively, the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the "Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable") if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter Borrower in Dollars from time to time during the Swing Line Commitment shall be treated as reduced Period in an aggregate principal amount at any one time outstanding not to nilexceed the Swing Line Commitment Amount, provided that immediately after making each Swing Line Loan, (i) the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan Credit Exposure would not exceed the Swing Line Lender will again promptly request Lender's Revolving Credit Commitment Amount (in its capacity as a Lender), (ii) the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account aggregate unpaid balance of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by Loans would not exceed the Swing Line Lender on behalf Commitment Amount and (iii) the Aggregate Credit Exposure of all Lenders would not exceed the Relevant Borrower to repay Aggregate Revolving Credit Commitment Amount. During the Swing Line Loans made by such Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4Commitment, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed all in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1Agreement. any lack of validity or enforceability No Swing Line Loan shall be made prior to the making of the Relevant Borrower's obligations under Section 2.6 or Article Six;first Revolving Credit Loans on the first Borrowing Date.
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the (b) The Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails shall not be obligated to make payment on the due date therefor of any amount due from it for the account of the Swing Line Loan at a time when any Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to shall be in default of its obligations under this Subsection 13.26.3 as an "overdue amount") then until Agreement unless the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (entered into arrangements satisfactory to it and without in any way limiting the rights of Borrower to eliminate the Swing Line Lender Lender's risk with respect to such defaulting Lender's participation in respect of such failure):
13.26.3.1Swing Line Loan. the The Swing Line Lender shall be entitled to receive will not make a Swing Line Loan if the Administrative Agent, or any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender notice to the Swing Line Lender at and the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver no later than one Business Day prior to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds Borrowing Date with respect to such Swing Line Lender by Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such Lender at a rate per annum equal to conditions remain unsatisfied as of the Federal Funds Rate (in requested time of the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for making such periodLoan. Such payment shall only, however, be made by the Lenders in the event and to the extent such Each Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to Loan shall be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.due and payable
Appears in 1 contract
Sources: Credit Agreement (Furon Co)
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time on any Business Day during the period from the Effective Date to the sixth Business Day preceding the Revolving Maturity Date, provided that (i) immediately after making each Swing Line Loan, (A) the aggregate outstanding principal balance of the Swing Line Loans will not exceed the Swing Line Commitment and (B) the Aggregate Revolving Exposure will not exceed the Aggregate Revolving Commitment, (ii) prior thereto or simultaneously therewith the Borrower shall have borrowed Revolving Loans, (iii) no Lender shall be in default of its obligations under this Agreement and (iv) no Credit Party shall have notified the Swing Line Lender and the Majority Lenders agree otherwiseBorrower in writing at least one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, if an Event that the conditions set forth in Section 5.02 have not been satisfied and such conditions remain unsatisfied as of Default occurs then the requested time of the making such Swing Line Loan.
(b) To request a Swing Line Loan, the Borrower shall notify the Administrative Agent and the Swing Line Lender by the delivery of a Credit Request, which shall be sent by facsimile and shall be irrevocable (confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Credit Request in a form approved by the Administrative Agent signed by the Borrower), no later than 11:00 a.m., on the requested Borrowing Date, specifying (i) the aggregate principal amount to be borrowed and (ii) the requested Borrowing Date. The Swing Line Lender will, subject to its determination that the terms and conditions of this Agreement have been satisfied, make the requested amount available promptly on that same day, to the Administrative Agent (for the account of the Borrower) who, thereupon, will promptly request make such amount available to the Agent on behalf Borrower by crediting the account of each Relevant the Borrower (and for this purpose pursuant to Section 2.04. Each Borrowing of a Swing Line Loan shall be in an aggregate principal amount equal to $100,000 or, if less, the unused portion of the Swing Line Commitment.
(c) The Swing Line Lender is irrevocably authorized by each Relevant Borrower shall not be obligated to do so) for an Advance by way make any Swing Line Loan at a time when any Lender shall be in default of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant its obligations under this Agreement unless arrangements to Section 2.4 to repay to eliminate the Swing Line Lender the Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way Loan shall have been made for the benefit of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly such arrangements are satisfactory to the Swing Line Lender. At all times thereafter The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 5.02 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Swing Line Loan.
(d) Principal and accrued interest on each Swing Line Loan shall be due and payable on (i) demand made by the Swing Line Lender any time upon three Business Day’s prior notice to the Borrower (with a copy to the Administrative Agent) at or before 12:00 noon, New York City time, and (ii) in any event on the earliest to occur of (A) the first Borrowing Date with respect to Revolving Loans to occur after the date of such Swing Line Loan, (B) the fifth Business Day prior to the Revolving Credit Commitment Termination Date, (C) the date on which the Swing Line Commitment shall be treated as reduced have been terminated by the Borrower or the Swing Line Lender in accordance with Section 2.06, and (D) the date on which the Swing Line Loans shall become due and payable pursuant to nilthe provisions hereof, whether by acceleration or otherwise.
(e) The Swing Line Lender, at any time and from time to time in its sole and absolute discretion may, on behalf or the Borrower (and the Borrower hereby irrevocably directs the Swing Line Lender to act on its behalf), on one Business Day’s notice given by the Swing Line Lender no later than 12:00 noon, New York City time, request each Lender to make, and each Lender hereby agrees to make, a Revolving Loan in an amount equal to such Lender’s Revolving Percentage of the aggregate amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date of such notice, to repay the Swing Line Lender's Revolver Commitment . Each Lender shall be increased by make the amount of such reduction and Revolving Loan available to the Lenders Administrative Agent in immediately available funds, not later than 10:00 a.m., New York City time, one Business Day after the date of such notice. The proceeds of such Revolving Loans shall make such adjusting payments amongst them in be immediately made available by the manner contemplated by Section 13.22.2 as may be required Administrative Agent to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose application by the Swing Line Lender is irrevocably authorized by to the Relevant Borrower repayment of the Refunded Swing Line Loans. Such Revolving Loans shall be made notwithstanding the Borrower’s failure to do socomply with Section 5.02.
(f) for an Advance by way of Prime Rate If, prior to the time a Revolving Loan or Base Rate Loan (as applicable) from the Lenders otherwise would have been made pursuant to Section 2.4 2.05(e), an Event of Default shall have occurred and be continuing with respect to repay that the Borrower, or if for any other reason, as determined by the Swing Line Loan Lender in its sole discretion, Revolving Loans may not be made as contemplated by Section 2.05(e), each Lender, on the date such Revolving Loans were to have been made pursuant to the notice referred to in Section 2.05(e), shall purchase unconditionally, irrevocably, and severally from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the foregoing provisions outstanding amount of this Subsection 13.26.1 shall equally apply to each such further Advancethe Swing Line Loans (the “Swing Line Participation Amount”). Each Lender unconditionally agrees to pay shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.05(f) that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents. In furtherance of this subsection, upon each receipt by a Lender of notice of an Event of Default from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except promptly upon receipt thereof in like funds as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3received. If a Lender (a "Defaulting Lender") fails does not make its Swing Line Participation Amount so available, such Lender shall be required to make payment on pay interest to the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (from the balance thereof for date such amount was due until paid in full, on the time being unpaid being referred to portion thereof, at the rate set forth in this Subsection 13.26.3 as an "overdue amount") then until Section 2.04(b), payable upon demand by the Swing Line Lender has received payment of that amount (plus Lender. The Administrative Agent shall distribute such interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender payments to the Swing Line Lender at upon receipt thereof in like funds as received. Whenever the rate payable Administrative Agent is reimbursed by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated therebyBorrower, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in connection therewithpursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period on and after the Closing Date to but excluding the Revolving Loan Maturity Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in Section 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender’s outstanding Revolving Loans and Swing Line Lender’s Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender’s Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $10,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to Section 2.4B(ii) or 2.4B(v) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Maturity Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Lender Loans shall be paid in full no later than that date. Amounts borrowed under this Section 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Maturity Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to Section 2.4B(i), Swing Line Lender may, at any time in its sole and pay absolute discretion, deliver to Administrative Agent at the Notice Office (with a copy to Company), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company and shall be deemed given on Friday of each week regardless of whether an actual Notice of Borrowing is so delivered) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds thereof directly of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. At all times thereafter the If any portion of any such amount paid (or deemed to be paid) to Swing Line Commitment Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may 10.5. If for any reason the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be required deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions its Pro Rata Share (calculated immediately prior to such termination of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Revolving Loan Commitments) of the unpaid amount of such Swing Line Loan the Loans together with accrued interest thereon. Upon one Business Day’s notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender will again promptly request an amount equal to its respective participation in same day funds at the Agent on behalf of the Relevant Borrower (Funding and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower Payment Office. In order to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each further evidence such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full participation (and without in any way limiting prejudice to the rights effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in respect form and substance reasonably satisfactory to such Lender and Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such failure):
13.26.3.1. the Lender’s participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of Federal Funds Effective Rate for three Business Days and thereafter at the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2Base Rate. In the overdue amount shall bear interest payable by the Defaulting Lender to the event Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender’s obligation to purchase a participation interest in any unpaid Swing Line Loans pursuant to Subsection 13.26.4the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or of any other amount from the Relevant Borrower right which such Lender may have against Swing Line Lender, Company or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in respect the business, operations, properties, assets, condition (financial or otherwise) or prospects of such payment Company or any of its Subsidiaries; (d) any breach of this Agreement or any other than pursuant Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Notwithstanding anything to the contrary contained in this Section 2.6 or 6.22.1A(iii), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such (a) Swing Line Lender shall promptly return not be obligated to make any Swing Line Loans at a time when a Funding Default exists with respect to Lender having a Revolving Loan Commitment unless Swing Line Lender has entered into arrangements satisfactory to it and Company to eliminate the Swing Line Lender’s risk with respect to each Defaulting Lender’s participation in such Swing Line Lender any portion thereof previously transferred Loans (which arrangements are hereby consented to it by the Lenders), including by cash collateralizing such Defaulting Lender’s respective Pro Rata Share of the outstanding Swing Line LenderLoans (such arrangements, without interest to the extent that interest is not payable by such “Swing Line Back-Stop Arrangements”), and (b) Swing Line Lender in connection therewithshall not make any Swing Line Loan after it has received written notice from Company, any other Loan Party or the Requisite Lenders stating that a Potential Event of Default or an Event of Default exists and is continuing until such time as the Swing Line Lender shall have received written notice (X) of rescission of all such notices from the party or parties originally delivering such notice or notices or (Y) of the waiver of such Potential Event of Default or Event of Default by the Requisite Lenders.
Appears in 1 contract
Sources: Credit Agreement (Alliance HealthCare Services, Inc)
Swing Line Loans. 13.26.1(i) Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Revolving Lenders set forth in this clause (c), to make a portion of the Revolving Commitments available to the Borrower from time to time during the Revolving Availability Period by making Swing Line Loans to the Borrower in Dollars (each such loan, a “Swing Line Loan” and, collectively, the “Swing Line Loans”); provided that (A) the aggregate principal amount of the Swing Line Loans outstanding at any one time shall not exceed the Swing Line Committed Amount, (B) each Swing Line Borrowing shall be in an aggregate principal amount of $100,000 or any larger multiple of $100,000, (C) with regard to each Lender individually (other than the Swing Line Lender in its capacity as such), such Lender’s outstanding Revolving Loans plus its Participation Interests in outstanding Swing Line Loans plus its Participation Interests in outstanding L/C Obligations shall not at any time exceed such Lender’s Revolving Commitment Percentage of the Revolving Committed Amount, (D) with regard to the Revolving Lenders collectively, the sum of the aggregate principal amount of Swing Line Loans outstanding plus the aggregate amount of Revolving Loans outstanding plus the aggregate amount of L/C Obligations outstanding shall not exceed the Revolving Committed Amount, (E) the Swing Line Committed Amount shall not exceed the aggregate of the Revolving Commitments then in effect, (F) no Swing Line Loans may be drawn on the Closing Date or the Closing Date and (G) the Swing Line Lender shall not be under any obligation to make any Swing Line Loans if any Revolving Lender is at such time a Defaulting Lender hereunder, unless the Swing Line Lender has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the Swing Line Lender (in its sole discretion) with the Borrower or such Revolving Lender to eliminate the Swing Line Lenders’ actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Swing Line Loans then proposed to be made and all other Swing Line Loans as to which the Swing Line Lender has actual or potential Fronting Exposure, as it may elect in its sole discretion. Unless Swing Line Loans shall be made and maintained as Base Rate Loans and may be repaid and reborrowed in accordance with the provisions hereof prior to the Swing Line Termination Date. Swing Line Loans may be made notwithstanding the fact that such Swing Line Loans, when aggregated with the Swing Line Lender’s other Revolving Outstandings, exceed its Revolving Commitment. The proceeds of a Swing Line Borrowing may not be used, in whole or in part, to refund any prior Swing Line Borrowing.
(ii) The principal amount of all Swing Line Loans shall be due and payable on the earliest of (A) the fifth day after the incurrence of such Swing Line Loan, unless another maturity date shall be agreed to by the Swing Line Lender and the Majority Lenders agree otherwiseBorrower with respect to such Swing Line Loan, if an Event (B) the Swing Line Termination Date, (C) the occurrence of Default occurs then any proceeding with respect to the Borrower under any Insolvency or Liquidation Proceeding or (D) the acceleration of any Loan or the termination of the Revolving Commitments pursuant to Section 8.02.
(iii) With respect to any Swing Line Loans that have not been voluntarily prepaid by the Borrower or paid by the Borrower when due under clause (ii) above, the Swing Line Lender will promptly (by request to the Administrative Agent) or the Administrative Agent at any time may, on behalf one Business Day’s notice, require each Revolving Lender, including the Swing Line Lender, and each such Lender hereby agrees, subject to the provisions of each Relevant Borrower this Section 2.01(c), to make a Revolving Loan (and for this purpose which shall be initially funded as a Base Rate Loan) in an amount in Dollars equal to such Lender’s Revolving Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date notice is given.
(iv) In the case of Revolving Loans made by Lenders other than the Swing Line Lender under clause (iii) above, each such Revolving Lender shall make the amount of its Revolving Loan available to the Administrative Agent, in same day funds, at the Administrative Agent’s Office, not later than 1:00 P.M. on the Business Day next succeeding the date such notice is irrevocably authorized by each Relevant Borrower given. The proceeds of such Revolving Loans shall be immediately delivered to do sothe Swing Line Lender (and not to the Borrower) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 and applied to repay the Refunded Swing Line Loans. On the day such Revolving Loans are made, the Swing Line Lender’s Revolving Commitment Percentage of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by the Swing Line Lender and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall instead be outstanding as Revolving Loans. The Borrower authorizes the Administrative Agent and the Swing Line Lender to charge the Borrower’s account with the Administrative Agent (up to the amount available in such account) in order to pay immediately to the Swing Line Lender the amount of such Refunded Swing Line Loans to the extent amounts received from the Revolving Lenders, including amounts deemed to be received from the Swing Line Lender, are not sufficient to repay in full such Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by to the Swing Line Lender and pay should be recovered by or on behalf of the proceeds thereof directly to Borrower from the Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Revolving Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower 2.13.
(and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do sov) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion A copy of each Advance requested notice given by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount"Section 2.01(c) then until shall be promptly delivered by the Swing Line Lender has received payment to the Administrative Agent and the Borrower. Upon the making of that a Revolving Loan by a Revolving Lender pursuant to this Section 2.01(c), the amount so funded shall no longer be owed in respect of its Participation Interest in the related Refunded Swing Line Loans.
(plus vi) If as a result of any proceeding under any Insolvency or Liquidation Proceeding, Revolving Loans are not made pursuant to this Section 2.01(c) sufficient to repay any amounts owed to the Swing Line Lender as a result of a nonpayment of outstanding Swing Line Loans, each Revolving Lender agrees to purchase, and shall be deemed to have purchased, a participation in such outstanding Swing Line Loans in an amount equal to its Revolving Commitment Percentage of the unpaid amount together with accrued interest as provided below) thereon. Upon one Business Day’s notice from the Swing Line Lender, each Revolving Lender shall deliver to the Swing Line Lender an amount equal to its respective Participation Interest in full (and without such Swing Line Loans in any way limiting same day funds at the rights office of the Swing Line Lender specified or referred to in Section 10.02. In order to evidence such Participation Interest each Revolving Lender agrees to enter into a participation agreement at the request of the Swing Line Lender in respect form and substance reasonably satisfactory to all parties. In the event any Revolving Lender fails to make available to the Swing Line Lender the amount of such failure):
13.26.3.1. Revolving Lender’s Participation Interest as provided in this Section 2.01(c)(vi), the Swing Line Lender shall be entitled to receive recover such amount on demand from such Revolving Lender together with interest at the customary rate set by the Swing Line Lender for correction of errors among banks in New York City for one Business Day and thereafter at the Base Rate plus the then Applicable Margin for Base Rate Loans.
(vii) Each Revolving Lender’s obligation to make Revolving Loans pursuant to clause (iv) above and to purchase Participation Interests in outstanding Swing Line Loans pursuant to clause (vi) above shall be absolute and unconditional and shall not be affected by any payment circumstance, including (without limitation) (i) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender or any other Person may have against the Defaulting Lender would otherwise have been entitled to receive Swing Line Lender, the Borrower or any other Loan Party, (ii) the occurrence or continuance of a Default or an Event of Default or the termination or reduction in respect the amount of the Credit Facilities Revolving Commitments after any such Swing Line Loans were made, (iii) any adverse change in the condition (financial or otherwise in respect otherwise) of the Borrower or any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable other Person, (iv) any breach of this Agreement or any other Finance Document by the Defaulting Borrower or any other Lender, (v) whether any condition specified in Article IV is then satisfied or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the forgoing. If such Lender does not pay such amount forthwith upon the Swing Line Lender’s demand therefor, and until such time as such Lender makes the required payment, the Swing Line Lender shall be deemed to continue to have outstanding Swing Line Loans in the amount of such unpaid Participation Interest for all purposes of the Finance Documents other than those provisions requiring the other Lenders to purchase a participation therein. Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans, and any other amounts due to it hereunder, to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the fund Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender Loans in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed the Participation Interest in Swing Line Obligations.
13.26.5. The Swing Line Loans that such Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation failed to which other Lenders have purchased a participation interest purchase pursuant to Subsection 13.26.4, or of any other this Section 2.01(c)(vii) until such amount from the Relevant Borrower or any other Person in respect has been purchased (as a result of such payment (other than pursuant to Section 2.6 assignment or 6.2otherwise), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1(a) By telephonic notice to the Swing Line Lender on or before 2:00 p.m., Denver time, on the Business Day the proposed Swing Line Loan is to be made, promptly followed (within one Business Day) by the delivery of a confirming Borrowing Request to the Swing Line Lender, the Borrower may from time to time irrevocably request that a Swing Line Loan be made by the Swing Line Lender. Unless All Swing Line Loans shall be made as Base Rate Loans and shall not be entitled to be converted into LIBO Rate Loans. The proceeds of each Swing Line Loan shall be made available by the Swing Line Lender, by 4:00 p.m., Denver time, on the Business Day telephonic notice is received by it as provided in this clause (a), to the Borrower by wire transfer to the account the Borrower shall have specified in its notice therefor.
(b) Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender's Percentage times the amount such Swing Line Loan. If the Borrower has not repaid in full the principal amount of each Swing Line Loan when due in accordance with Section 3.1.1, then each Lender with a Revolving Loan Commitment (other than the Swing Line Lender) irrevocably agrees that it will, at the request of the Swing Line Lender and upon notice from the Majority Lenders agree otherwiseAdministrative Agent, if unless such Swing Line Loan shall have been earlier repaid, make a Revolving Loan (which shall initially be funded as a Base Rate Loan) in an Event amount equal to such Lender's Percentage of Default occurs the aggregate principal amount of all such Swing Line Loans then outstanding (such outstanding Swing Line Loans hereinafter referred to as the "Refunded Swing Line Loans"); provided, that the Swing Line Lender will promptly shall not request, and no Lender shall make, any Refunded Swing Line Loan if, after giving effect to the making of such Refunded Swing Line Loan, the sum of all Swing Line Loans and Revolving Loans made by such Lender, plus such Lender's Percentage of the aggregate amount of all Letter of Credit Outstandings, would exceed such Lender's Percentage of the then existing Revolving Loan Commitment Amount. On or before 2:00 p.m. (Denver time) on the first Business Day following receipt by each Lender of a request to make Revolving Loans as provided in the Agent preceding sentence, each Lender shall deposit in an account specified by the Swing Line Lender the amount so requested in same day funds and such funds shall be applied by the Swing Line Lender to repay the Refunded Swing Line Loans. At the time the aforementioned Lenders make the above referenced Revolving Loans, the Swing Line Lender shall be deemed to have made, in consideration of the making of the Refunded Swing Line Loans, a Revolving Loan in an amount equal to the Swing Line Lender's Percentage of the aggregate principal amount of the Refunded Swing Line Loans. Upon the making (or deemed making, in the case of the Swing Line Lender) of any Revolving Loans pursuant to this clause (b), the amount so funded shall become outstanding under such Lender's Revolving Note and shall no longer be owed under the Swing Line Note. All interest payable with respect to any Revolving Loans made (or deemed made, in the case of the Swing Line Lender) pursuant to this clause (b) shall be appropriately adjusted to reflect the period of time during which the Swing Line Lender had outstanding Swing Line Loans in respect of which such Revolving Loans were made. Each Lender's obligation to make the Revolving Loans referred to in this clause (b) 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 which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of any Default; (iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv) the acceleration or maturity of any Loans or the termination of any Commitment after the making of any Swing Line Loan; (v) any breach of this Agreement or any other Loan Document by the Borrower or any Lender; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(c) In the event that the Borrower or any other Obligor is subject to any bankruptcy or insolvency proceedings as provided in Section 8.1.9, or if for any other reason Revolving Loans cannot be made or are unavailable, each Lender shall fund its risk participation interest in the relevant Swing Line Loan otherwise required to be repaid by such Lender pursuant to the preceding clause by paying to the Swing Line Lender on behalf the date on which such Lender would otherwise have been required to make a Revolving Loan in respect of each Relevant Borrower such Swing Line Loan pursuant to the preceding clause, in same day funds, an amount equal to such Lender's Percentage of such Swing Line Loan, and no Revolving Loans shall be made by such Lender pursuant to the preceding clause. From and after the date on which any Lender funds its risk participation interest in a Swing Line Loan pursuant to this clause, the Swing Line Lender shall distribute to such Lender (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender's participation interest is outstanding and for this purpose funded) its ratable amount of all payments of principal and interest in respect of such Swing Line Loan in like funds as received; provided, however, that in the event such payment received by the Swing Line Lender is irrevocably authorized by each Relevant Borrower required to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from be returned to the Lenders pursuant to Section 2.4 to repay Borrower, such Lender shall return to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence portion of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line amounts which such Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due had received from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amountlike funds.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1(i) The Swing Line Lender agrees, on the terms and subject to the conditions set forth herein and in the other Loan Documents, to make a portion of the Revolving Commitments available to the Borrower from time to time during the Availability Period by making Swing Line Loans to the Borrower in Dollars (each such loan, a “Swing Line Loan” and, collectively, the “Swing Line Loans”); provided that (A) the aggregate principal amount of the Swing Line Loans outstanding at any one time shall not exceed the Swing Line Committed Amount, (B) with regard to each Lender individually (other than the Swing Line Lender in its capacity as such), such Lender’s outstanding Revolving Loans plus its Participation Interests in outstanding Swing Line Loans plus its Participation Interests in outstanding L/C Obligations shall not at any time exceed such Lender’s Revolving Commitment Percentage of the Revolving Committed Amount, (C) with regard to the Revolving Lenders collectively, the sum of the aggregate principal amount of Swing Line Loans outstanding plus the aggregate amount of Revolving Loans outstanding plus the aggregate amount of L/C Obligations outstanding shall not exceed the Revolving Committed Amount and (D) the Swing Line Committed Amount shall not exceed the aggregate of the Revolving Commitments then in effect. Unless Swing Line Loans shall be made and maintained as Base Rate Loans and may be repaid and reborrowed in accordance with the provisions hereof prior to the Swing Line Termination Date. Swing Line Loans may be made notwithstanding the fact that such Swing Line Loans, when aggregated with the Swing Line Lender’s other Revolving Outstandings, exceeds its Revolving Commitment. The proceeds of a Swing Line Borrowing may not be used, in whole or in part, to refund any prior Swing Line Borrowing.
(ii) The principal amount of all Swing Line Loans shall be due and payable on the earliest of (A) the maturity date agreed to by the Swing Line Lender and the Majority Lenders agree otherwiseBorrower with respect to such Swing Line Loan (which maturity date shall not be more than seven Business Days from the date of advance thereof), if an Event (B) at the request of Default occurs then the Swing Line Lender, the last day of the current calendar quarter, (C) the Swing Line Termination Date, (D) the occurrence of any proceeding with respect to the Borrower under any Debtor Relief Law or (E) the acceleration of any Loan or the termination of the Revolving Commitments pursuant to Section 8.02.
(iii) With respect to any Swing Line Loans that have not been voluntarily prepaid by the Borrower or paid by the Borrower when due under clause (ii) above, the Swing Line Lender will promptly (by request to the Administrative Agent) or the Administrative Agent at any time may, and shall at any time Swing Line Loans in an amount of $1,000,000 or more shall have been outstanding for more than seven days, on behalf one Business Day’s notice, require each Revolving Lender, including the Swing Line Lender, and each such Lender hereby agrees, subject to the provisions of each Relevant Borrower this Section 2.01(c), to make a Revolving Loan (and for this purpose which shall be initially funded as a Base Rate Loan) in an amount equal to such Lender’s Revolving Commitment Percentage of the amount of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date notice is given.
(iv) In the case of Revolving Loans made by Lenders other than the Swing Line Lender under clause (iii) above, each such Revolving Lender shall make the amount of its Revolving Loan available to the Administrative Agent, in same day funds, at the Administrative Agent’s Office, not later than 1:00 P.M. on the Business Day next succeeding the date such notice is irrevocably authorized by each Relevant Borrower given. The proceeds of such Revolving Loans shall be immediately delivered to do sothe Swing Line Lender (and not to the Borrower) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 and applied to repay the Refunded Swing Line Loans. On the day such Revolving Loans are made, the Swing Line Lender’s Revolving Commitment Percentage of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by the Swing Line Lender and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall instead be outstanding as Revolving Loans. The Borrower authorizes the Administrative Agent and the Swing Line Lender to charge the Borrower’s account with the Administrative Agent (up to the amount available in such account) in order to pay immediately to the Swing Line Lender the amount of such Refunded Swing Line Loans to the extent amounts received from the Revolving Lenders, including amounts deemed to be received from the Swing Line Lender, are not sufficient to repay in full such Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by to the Swing Line Lender and pay should be recovered by or on behalf of the proceeds thereof directly to Borrower from the Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Revolving Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower 2.13.
(and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do sov) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion A copy of each Advance requested notice given by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount"Section 2.01(c) then until shall be promptly delivered by the Swing Line Lender has received payment to the Administrative Agent and the Borrower. Upon the making of that a Revolving Loan by a Revolving Lender pursuant to this Section 2.01(c), the amount so funded shall no longer be owed in respect of its Participation Interest in the related Refunded Swing Line Loans.
(plus vi) If as a result of any proceeding under any Debtor Relief Law, Revolving Loans are not made pursuant to this Section 2.01(c) sufficient to repay any amounts owed to the Swing Line Lender as a result of a nonpayment of outstanding Swing Line Loans, each Revolving Lender agrees to purchase, and shall be deemed to have purchased, a participation in such outstanding Swing Line Loans in an amount equal to its Revolving Commitment Percentage of the unpaid amount together with accrued interest as provided below) thereon. Upon one Business Day’s notice from the Swing Line Lender, each Revolving Lender shall deliver to the Swing Line Lender an amount equal to its respective Participation Interest in full (and without such Swing Line Loans in any way limiting same day funds at the rights office of the Swing Line Lender specified or referred to in Section 10.02. In order to evidence such Participation Interest each Revolving Lender agrees to enter into a participation agreement at the request of the Swing Line Lender in respect form and substance reasonably satisfactory to all parties. In the event any Revolving Lender fails to make available to the Swing Line Lender the amount of such failure):
13.26.3.1. Revolving Lender’s Participation Interest as provided in this Section 2.01(c)(vi), the Swing Line Lender shall be entitled to receive recover such amount on demand from such Revolving Lender together with interest at the customary rate set by the Swing Line Lender for correction of errors among banks in New York City for one Business Day and thereafter at the Base Rate plus the then Applicable Margin for Base Rate Loans.
(vii) Each Revolving Lender’s obligation to make Revolving Loans pursuant to clause (iv) above and to purchase Participation Interests in outstanding Swing Line Loans pursuant to clause (vi) above shall be absolute and unconditional and shall not be affected by any payment circumstance, including (without limitation) (i) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender or any other Person may have against the Defaulting Lender would otherwise have been entitled to receive Swing Line Lender, the Borrower, Holdings or any other Loan Party, (ii) the occurrence or continuance of a Default or an Event of Default or the termination or reduction in respect the amount of the Credit Facilities Revolving Commitments after any such Swing Line Loans were made, (iii) any adverse change in the condition (financial or otherwise in respect otherwise) of the Borrower or any other Person, (iv) any breach of this Agreement or any other Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable Document by the Defaulting Borrower or any other Lender, (v) whether any condition specified in Article IV is then satisfied or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the forgoing. If such Lender does not pay such amount forthwith upon the Swing Line Lender’s demand therefor, and until such time as such Lender makes the required payment, the Swing Line Lender shall be deemed to continue to have outstanding Swing Line Loans in the amount of such unpaid Participation Interest for all purposes of the Loan Documents other than those provisions requiring the other Lenders to purchase a participation therein. Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans, and any other amounts due to it hereunder to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the fund Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender Loans in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed the Participation Interest in Swing Line Obligations.
13.26.5. The Swing Line Loans that such Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation failed to which other Lenders have purchased a participation interest purchase pursuant to Subsection 13.26.4, or of any other this Section 2.01(c)(vi) until such amount from the Relevant Borrower or any other Person in respect has been purchased (as a result of such payment (other than pursuant to Section 2.6 assignment or 6.2otherwise), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (i) Subject to the terms and conditions set forth herein, each Swing Line Lender agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this Section 2.04, to make loans in Dollars (each such loan, a “Swing Line Loan”) to the Borrowers from time to time on any Business Day during the Availability Period with respect to the Facility in an aggregate amount not to exceed at any time outstanding the amount of its pro rata share of the Swing Line Lender and Sublimit, notwithstanding the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the fact that such Swing Line Loans. The , when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans of the Revolving Credit Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (acting as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nilLenders, the Swing Line Lender's Revolver Commitment shall be increased by may exceed the amount of such reduction Revolving Credit Lender’s Revolving Credit Commitment; provided that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit Commitment and (ii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions aggregate Outstanding Amount of the Revolver Facility. If Committed Loans of any Standby Instrument is thereafter drawn upon which results in a further Revolving Credit Lender, plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment; and provided, further, that the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.
(ii) Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04.
(iii) Each Swing Line Loan shall be a Base Rate Loan made and maintained in Dollars. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the relevant Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that a risk participation in such Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay in an amount equal to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect product of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive Revolving Credit Lender’s Applicable Percentage in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. Facility times the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line ObligationsLoan.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender’s outstanding Revolving Loans and Swing Line Lender’s Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender’s Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $50,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on July 26, 2007 if the initial Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting 41 Revolving Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Borrower hereby authorizes Administrative Agent and Swing Line Lender to charge Borrower’s accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Borrower from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day’s notice from Swing Line Lender, each Revolving Lender shall deliver to Swing’ Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation. provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to the parties thereto. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender’s participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender receives a payment of any amount in which other Revolving Lenders have purchased participations as contemplated therebyprovided in this paragraph, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the purchase price contrary notwithstanding, each Revolving Lender’s obligation to make Revolving Loans for such Lender's participation interest in the relevant unreimbursed purpose of repaying any Refunded Swing Line Advances. Each Lender shall, upon demand by such Loans pursuant to the second preceding paragraph and each Revolving Lender’s obligation to purchase a participation in any unpaid Swing Line Lender made Loans pursuant to the Agentimmediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, deliver to the Agent for the account of including (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Borrower or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each Revolving Lender shall promptly return are subject to such the condition that (x) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made, or (y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been terminated in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders agree otherwise, if and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Sections 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Swing Line Lender will promptly request Domestic Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) whether the amount of such reduction Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(c) Upon each receipt by a further Swing Line Loan Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf of the Relevant Borrower (and for this purpose the outstanding Swing Line Lender is irrevocably authorized by Loans (including accrued interest thereon) in an amount equal to the Relevant Borrower to do so) for an Advance by way product of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan its Commitment Percentage and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account outstanding balance of the Swing Line Loans (each, a “Swing Line Participation Amount”). Each Lender such Lender's Rateable Portion shall also be liable for an amount equal to the product of each Advance requested its Commitment Percentage and any amounts paid by the Swing Line Lender on behalf of the Relevant Borrower pursuant to repay Swing Line Loans made by such Swing Line Lender.
13.26.2this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and Such liabilities shall be performed in accordance with the terms unconditional and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred without regard to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights compliance by the Agent Borrower with any of its obligations under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant BorrowerLoan Documents.
13.26.3. If (d) In furtherance of Section 2.2(c), upon each receipt by a Lender (a "Defaulting Lender") fails of notice from the Administrative Agent, such Lender shall promptly make available to make payment on the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred immediately preceding sentence to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of that such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section (plus except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest as provided below) in full (and without in any way limiting to the rights Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in respect full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such failure):
13.26.3.1. amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender Lender. The Administrative Agent shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear distribute such interest payable by the Defaulting Lender payments to the Swing Line Lender at upon receipt thereof in like funds as received.
(e) Whenever the rate payable Administrative Agent is reimbursed by the Relevant Borrower in respect for the account of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in immediately available funds pursuant to this Section, the purchase price for Administrative Agent will promptly remit such payment to such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (a) During the Availability Period, subject to the terms and conditions hereof, the Swing Line Lender and agrees to make Swing Line Loans to the Majority Lenders agree otherwise, if an Event of Default occurs then Borrower in the aggregate amount up to but not exceeding the Swing Line Lender will promptly request Sublimit; provided that after giving effect to the Agent on behalf making of each Relevant Borrower any Swing Line Loan, in no event shall (and for this purpose i) the Total Utilization of Commitments exceed the Commitments then in effect or (ii) unless otherwise agreed to in writing by the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way Lender, the aggregate amount of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way , Revolving Loans and Letters of Prime Rate Loan or Base Rate Loan (as applicable) if so requested Credit issued by the Swing Line Lender exceed the Swing Line Lender’s Commitments hereunder; provided that the Swing Line Lender shall not be required to make a Swing Line Loan to refinance an outstanding Swing Line Loan. Amounts borrowed pursuant to this Section 2.3 may be repaid and pay reborrowed during the proceeds thereof directly Availability Period. The Swing Line Lender’s Commitment shall expire on the Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Lender. At Loans and the Commitments shall be paid in full no later than such date.
(b) Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount; provided that a Swing Line Loan may be in an aggregate amount that is required to finance the reimbursement of a Letter of Credit drawing as contemplated by Section 2.4(d).
(c) The Swing Line Lender may by written notice given to the Administrative Agent not later than 1:00 p.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all times thereafter or a portion of the Swing Line Commitment Loans outstanding. Such notice shall be treated as reduced to nil, specify the aggregate amount of the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and Loans in which the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may will be required to ensure their respective participations participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions such notice such Lender’s Applicable Percentage of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further such Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further AdvanceLoans. Each Lender hereby absolutely and unconditionally agrees to pay pay, upon receipt of notice as provided above, to the Agent Administrative Agent, for the account of the Swing Line Lender Lender, such Lender's Rateable Portion ’s Applicable Percentage of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2Loan or Loans. Except as provided Each Lender acknowledges and agrees that, in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to making any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. Loan, the Swing Line Lender shall be entitled to receive rely, and shall not incur any payment which liability for relying, upon the Defaulting representation and warranty of the Borrower deemed made pursuant to Section 4.2, unless, at least one Business Day prior to the time such Swing Line Loan was made, the Required Lenders or the Borrower shall have notified the Swing Line Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.2(b), (c) or (d) would otherwise not be satisfied if such Swing Line Loan were then made (it being understood and agreed that, in the event the Swing Line Lender shall have received any such notice, it shall have no obligation to make any Swing Line Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been entitled cured or otherwise shall have ceased to receive exist). Each Lender further acknowledges and agrees that its obligation to acquire participations in respect Swing Line Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Credit Facilities Commitments, and that each such payment shall be made without any offset, abatement, withholding or otherwise reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.6 with respect to Loans made by such Lender (and Section 2.6 shall apply, mutatis mutandis, to the payment obligations of any Loan Document; and
13.26.3.2. the overdue amount Lenders pursuant to this paragraph), and the Administrative Agent shall bear interest payable by the Defaulting Lender promptly remit to the Swing Line Lender at the rate payable amounts so received by it from the Relevant Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swing Line Loan acquired pursuant to this paragraph, and thereafter payments in respect of the such Swing Line Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not shall be made pursuant to Subsection 13.26.1 the Administrative Agent and not to reimburse the Swing Line Lender. Any amounts received by the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to Borrower (or other Person on behalf of the Agent for the account Borrower) in respect of such a Swing Line Lender in immediately available funds Loan after receipt by the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such unreimbursed amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swing Line Advances until Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal or to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall onlyAdministrative Agent, howeveras applicable, be made by the Lenders in the event if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swing Line Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the Borrower of its obligation to repay such Swing Line Loan.
(d) The Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed may resign as Swing Line Obligations.
13.26.5Lender upon 30 days prior written notice to the Administrative Agent, the Lenders and the Borrower. The Swing Line Lender shallmay be replaced at any time by written agreement among the Borrower, forthwith upon its receipt the Administrative Agent and the successor Swing Line Lender. The Administrative Agent shall notify the Lenders of any reimbursement such replacement of the Swing Line Lender. At the time any such replacement or resignation shall become effective, (in whole or in parti) the Borrower shall prepay any outstanding Swing Line Loans made by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, resigning or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such removed Swing Line Lender, without interest to (ii) upon such prepayment, the extent that interest is not payable by such resigning or removed Swing Line Lender shall surrender any Swing Line Note held by it to the Borrower for cancellation, and (iii) the Borrower shall issue, if so requested by the successor Swing Line Loan Lender, a new Swing Line Note to the successor Swing Line Lender, in connection therewiththe principal amount of the Swing Line Sublimit then in effect and with other appropriate insertions. From and after the effective date of any such replacement or resignation, (x) any successor Swing Line Lender shall have all the rights and obligations of a Swing Line Lender under this Agreement with respect to Swing Line Loans made thereafter and (y) references herein to the term “Swing Line Lender” shall be deemed to refer to such successor or to any previous Swing Line Lender, or to such successor and all previous Swing Line Lenders, as the context shall require.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (DoorDash Inc)
Swing Line Loans. 13.26.1. Unless the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to The Borrowers shall repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans on the earlier to occur of (i) the date ten (10) Business Days after such Loan is made by such Swing Line Lenderand (ii) the Maturity Date for the Revolving Credit Facility. Interest.
13.26.2. Except as provided in Subsection 13.26.4(a) Subject to the provisions of Section 2.08(b), the obligations of (i) each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Term SOFR Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by on the Defaulting Lender outstanding principal amount thereof for each Interest Period at a rate per annum equal to Term SOFR for such Interest Period plus the Swing Line Lender at Applicable Rate; (ii) each Alternative Revolver Currency Daily Rate Loan shall bear interest on the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact outstanding principal amount thereof from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the applicable borrowing date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Alternative Revolver Currency Daily Rate plus the Applicable Rate; (in the case reimbursement is to be made in U.S. Dollarsiii) or the one month CDOR BA each Alternative Revolver Currency Term Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment Loan shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for bear interest on the outstanding principal amount of thereof for each Interest Period at a rate per annum equal to the Alternative Revolver Currency Term Rate for each day within such unreimbursed Interest Period plus the Applicable Rate; (iv) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iv) each Swing Line ObligationsLoan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the relevant Applicable Rate for Revolving Credit Loans that are Base Rate Loans.
13.26.5(b) The Borrowers shall pay interest on past due amounts under this Agreement at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. The Swing Line Lender shallAccrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand to the fullest extent permitted by and subject to applicable Laws, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances including in relation to which any required additional agreements.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other Lenders have purchased a participation interest pursuant to Subsection 13.26.4times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, or and before and after the commencement of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment proceeding under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithDebtor Relief Law.
Appears in 1 contract
Sources: Credit Agreement (Gen Digital Inc.)
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof and in reliance upon the agreements of the other Lenders set forth in this Section 2.2, the Swing Line Lender agrees to make loans in Dollars under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent or any Lender, by notice to the Swing Line Lender and the Majority Lenders agree Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied or waived and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the tenth Domestic Business Day after such Swing Line Loan is made, the date on which the Swing Line Commitment shall have been terminated in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate (or, if the Negotiated Rate is not available, the LIBOR Daily Floating Rate plus the Applicable Margin). The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Section 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”) shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Swing Line Lender will promptly request Domestic Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) whether the amount of such reduction Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(c) Upon each receipt by a further Swing Line Loan Lender of a notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the Relevant Borrower (and for this purpose outstanding balance of the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan Loans (as applicable) from the Lenders pursuant to Section 2.4 to repay that each, a “Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further AdvanceParticipation Amount”). Each Lender unconditionally agrees to pay shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.2 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of a notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in Dollars and in immediately available funds. The Administrative Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever Administrative Agent and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section 2.2 (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Issuing Bank against Swing Line Lender, as the Relevant Borrower.
13.26.3. If a case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender (a "Defaulting Lender") fails shall pay interest to make payment on the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender pursuant from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to Subsection 13.26.1 (i) from the balance thereof for date such amount was due until the time being unpaid being referred third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount upon receipt thereof in like funds as received.
(plus interest as provided belowe) in full (and without in any way limiting Whenever the rights Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in respect of such failure):
13.26.3.1. the connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender shall be entitled pursuant to receive any this Section 2.2, the Administrative Agent will promptly remit such payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amountLender.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS HEALTH Corp)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender’s outstanding Revolving Loans and Swing Line Lender’s Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender’s Revolving Loan Commitment. As of Default occurs then the RestatementFourth Amendment Effective Date, the amount of the Swing Line Lender will promptly request Loan Commitment is $50,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding proportionate reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to such Revolving Lender’s Pro Rata Share of such Swing Line Loan; provided, however that the amount of such Lender’s risk participation shall be adjusted in the manner set forth in Section 2.9D. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect and prior to the termination of the Revolving Loan Commitments, the Revolving Loan Exposure of a Lender shall not exceed its Revolving Loan Commitment. With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Borrower hereby authorizes Administrative Agent and Swing Line Lender to charge Borrower’s accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Borrower from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, the request submitted by Swing Line Lender pursuant to the immediately preceding paragraph shall be deemed to be a request by Swing Line Lender that each of the Revolving Lenders fund the amount of its Swing Line Risk Participation in the relevant Swing Line Loan and each Revolving Loan made pursuant to the immediately preceding paragraph shall be deemed payment in respect of such failure):
13.26.3.1Swing Line Risk Participation. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender’s Swing Line Risk Participation as provided in this paragraph, Swing Line Lender shall be entitled to receive recover such amount on demand from such Revolving Lender together with interest thereon at the rate customarily used by Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event Swing Line Lender receives a payment of any payment amount in which other Revolving Lenders have funded Swing Line Risk Participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Revolving Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Revolving Lender’s obligation to fund its Swing Line Risk Participation pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against Swing Line Lender, Borrower or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Borrower or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each Revolving Lender are subject to the condition that (x) Swing Line Lender believed in good faith that all conditions under Section 4 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made, or (y) the satisfaction of any such condition not satisfied had been waived in accordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made. Subject to Section 2.9E, at any time a Lender is a Defaulting Lender, within three (3) Business Days after the request of the Administrative Agent or Swing Line Lender, such Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities shall provide cash collateral or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender other security satisfactory to the Swing Line Lender at the rate payable by the Relevant Borrower (in its sole discretion) in respect of such Defaulting Lender’s obligation to fund its Swing Line Risk Participation (as adjusted pursuant to Section 2.9D); provided, that if such Defaulting Lender fails to provide such cash collateral or other security, the Loan Obligations which gave rise Borrower shall provide, within five (5) Business Days, cash collateral or other security satisfactory to the Swing Line Lender (in its sole discretion) in respect of such overdue amount.
13.26.4Defaulting Lender’s obligation to fund its Swing Line Risk Participation (as adjusted pursuant to Section 2.9D). Such Defaulting Lender and Borrower each hereby grants to the Administrative Agent, for the benefit of the Swing Line Lender and the other Lenders (other than such Defaulting Lender), a Lien on of such Person’s cash collateral or other security (and all proceeds of the foregoing) to secure the Obligations. Cash collateral shall be maintained in blocked, Deposit Accounts with the Administrative Agent and shall be invested in Cash Equivalents reasonably acceptable to the Administrative Agent or held as Cash. If for at any reason time the Administrative Agent determines that any funds held as cash collateral are subject to any right or claim of any Person other than the Administrative Agent or the Swing Line Lender or that the total amount of such funds is less than such Defaulting Lender’s funding obligations in respect of its Swing Line Risk Participation, such Defaulting Lender or Borrower shall, within three (3) Business Days after demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as cash collateral, an Advance may not amount equal to the excess of (x) such aggregate funding obligations over (y) the total amount of funds, if any, then held as cash collateral that the Administrative Agent determines to be made pursuant free and clear of any such right and claim. At the discretion of the Swing Line Lender, such funds shall be applied, to Subsection 13.26.1 the extent permitted under applicable Governmental Authorizations, to reimburse the Swing Line Lender as contemplated thereby, then promptly Lender. The Lien held by the Administrative Agent in such cash collateral shall be released upon receipt the satisfaction of notification each of such fact from the Agent, each Lender shall deliver to the Agent for the account of such following conditions: (a) no Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Loans shall be outstanding, (b) all Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment Loan obligations shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not have been reimbursed repaid in full by the Relevant Borrower for interest on the amount and (c) no Event of such unreimbursed Swing Line ObligationsDefault shall have occurred and be continuing.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.11. Unless Subject to the terms and conditions of this Agreement, the Swing Line Lender and agrees to make swing line loans (each a "SWING LINE LOAN" and, collectively, the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so"SWING LINE LOANS") for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower from time to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter time during the Swing Line Commitment shall be treated as reduced to nilPeriod, PROVIDED THAT immediately after making each Swing Line Loan, a. the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan Credit Exposure would not exceed the Swing Line Lender will again promptly request Lender's Revolving Credit Commitment Amount, b. the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account aggregate unpaid balance of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by Loans would not exceed the Swing Line Lender on behalf of Commitment Amount, and c. the Relevant Borrower to repay Aggregate Credit Exposure would not exceed the Aggregate Revolving Credit Commitment Amount. During the Swing Line Loans made by such Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4Commitment, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed all in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1Agreement. any lack of validity The initial Swing Line Loan shall be made either contemporaneously with or enforceability after the making of the Relevant Borrower's obligations under Section 2.6 or Article Six;first Revolving Credit Loans on the first Borrowing Date.
13.26.2.22. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the The Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails shall not be obligated to make payment on the due date therefor of any amount due from it for the account of the Swing Line Loan at a time when any Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to shall be in default of its obligations under this Subsection 13.26.3 as an "overdue amount") then until Agreement unless the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (entered into arrangements satisfactory to it and without in any way limiting the rights of Borrower to eliminate the Swing Line Lender Lender's risk with respect to such defaulting Lender's participation in respect of such failure):
13.26.3.1Swing Line Loan. the The Swing Line Lender shall be entitled to receive will not make a Swing Line Loan if the Administrative Agent, or any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender notice to the Swing Line Lender at and the rate Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Loan. Each Swing Line Loan shall be due and payable on the day being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Relevant Borrower in respect of accordance with Section 2.7, and the Loan Obligations date on which gave rise the Swing Line Loans shall become due and payable pursuant to such overdue amountthe provisions hereof, whether by acceleration or otherwise.
13.26.43. If for On any reason an Advance may not Business Day on which a Swing Line Loan shall be made pursuant to Subsection 13.26.1 to reimburse due and payable and shall remain unpaid, the Swing Line Lender as contemplated therebymay, then promptly upon receipt of notification of such fact from the Agentin its sole discretion, each Lender shall deliver give notice to the Agent for Lenders and the account of Borrower that such outstanding Swing Line Lender Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of an Event of Default under Sections 9.1(h) or (i)), in immediately available funds the purchase price for which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a "MANDATORY BORROWING"), shall be made by all Lenders pro rata based on each such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest Commitment Percentage on the amount Business Day immediately succeeding the giving of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.such
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless the Swing Line Lender agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of either the Tranche A Revolving Loan Commitments or the Tranche B Revolving Loan Commitments available to Company, from time to time during the period from the Effective Date to but excluding the Commitment Termination Date, by making Tranche A Swing Line Loans or Tranche B Swing Line Loans, respectively, in Dollars to Company, in an aggregate amount not exceeding the amount of the applicable Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5A, notwithstanding the fact that (x) such Tranche A Swing Line Loans, when aggregated with Swing Line Lender's outstanding Domestic Tranche A Revolving Loans and such Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseTranche A Letter of Credit Usage for Company then in effect, if an Event may exceed such Swing Line Lender's Domestic Tranche A Revolving Loan Commitment, or (y) such Tranche B Swing Line Loans, when aggregated with Swing Line Lender's outstanding Domestic Tranche B Revolving Loans and such Swing Line Lender's Pro Rata Share of Default occurs the Tranche B Letter of Credit Usage for Company then in effect, may exceed such Swing Line Lender's Domestic Tranche B Revolving Loan Commitment, as the case may be; provided, however, that at any time Swing Line Lender will promptly request the Agent on behalf may make, and Company may borrow, only one Type of each Relevant Borrower (and for this purpose the Swing Line Loan; provided further that Swing Lender may not make, and Company may not borrow, Tranche A Swing Line Loans so long as an amount equal to the applicable Minimum Amount with respect to Tranche B Revolving Loan Commitments remains outstanding. The original amount of the Tranche A Swing Line Loan Commitment is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way $5,000,000 and the original amount of Prime Rate the Tranche B Swing Line Loan Commitment is $5,000,000; provided that any reduction of the Domestic Tranche A Revolving Loan Commitments or Base Rate Tranche B Revolving Loan (Commitments, as applicable) from the Lenders case may be, made pursuant to Section 2.4 subsection 2.4A(iii), 2.4B(ii) or 2.4B(iii) which reduces the aggregate Domestic Tranche A Revolving Loan Commitments or Tranche B Revolving Loan Commitments, respectively, to repay an amount less than the then current amount of the Tranche A Swing Line Loan Commitment or Tranche B Swing Line Loan Commitment, respectively, shall result in an automatic corresponding reduction of the Tranche A Swing Line Loan Commitment or Tranche B Swing Line Loan Commitment, respectively, to the Swing Line Lender amount of the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make Domestic Tranche A Revolving Loan Commitments, as so reduced, or the Tranche B Revolving Loan Commitments, as so reduced, respectively, without any Advance by way further action on the part of Prime Rate Loan Company, Administrative Agent or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At Each Swing Line Loan Commitment shall expire on the Commitment Termination Date and all times thereafter Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that each Swing Line Loan Commitment shall expire immediately and without further action on November 19, 1999 if the Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(iii) may be treated as reduced repaid and reborrowed to nilbut excluding the Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Lender's Revolver Commitment Loans and the Swing Line Loan Commitments shall be increased subject to the limitations that:
(1) in no event shall the Total Utilization of Tranche A Revolving Commitments for Company exceed (x) the Maximum Tranche A Revolving Loan Commitments then in effect or (y) the Tranche A Borrowing Base then in effect;
(2) in no event shall (x) the Total Utilization of Tranche B Revolving Loan Commitments for Company exceed the Maximum Tranche B Revolving Loan Commitments for Company then in effect, and (y) the Total Utilization of Tranche B Revolving Commitments for all Borrowers exceed (i) the Maximum Tranche B Revolving Loan Commitments for all Borrowers then in effect or the Tranche B Borrowing Base then in effect; and
(3) in no event shall the Dollar Equivalent of the sum of (x) the aggregate principal amount of all outstanding Tranche B Revolving Loans made to Company (other than Tranche B Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans, or reimbursing the applicable Issuing Lender for any amount drawn under any Tranche B Letter of Credit but not yet so applied) plus (y) the aggregate principal amount of all outstanding Tranche B Swing Line Loans made to Company, exceed the Tranche B Revolving Loan Suballocation for Company then in effect. With respect to Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 12:00 P.M. (New York time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting the Domestic Tranche A Lenders or Tranche B Lenders, as the case may be, to make Domestic Tranche A Revolving Loans or Tranche B Revolving Loans, as the case may be, that are Base Rate Loans on such Funding Date in an amount equal to the amount of such reduction Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests such applicable Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by such Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of such Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of such Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of such Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's applicable outstanding Revolving Loans and shall be due under the applicable Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of such Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by the applicable Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full such Refunded Swing Line Loans. If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all applicable Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) the applicable Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the applicable Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each applicable Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the applicable Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each applicable Lender shall deliver to Swing Line Lender an amount equal to its respective participation in Same Day Funds at the Funding and Payment Office. In the event any such applicable Lender fails to make available to Swing Line Lender the amount of such applicable Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such applicable Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender receives a payment of any amount in which other applicable Lenders have purchased participations as contemplated therebyprovided in this paragraph, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds shall promptly distribute to each such other applicable Lender its Pro Rata Share of such payment. Anything contained herein to the purchase price for such contrary notwithstanding, each applicable Lender's participation interest in obligation to make the relevant unreimbursed applicable Revolving Loans for the purpose of repaying any Refunded Swing Line Advances. Each Lender shall, upon demand by such Loans pursuant to the second preceding paragraph and each applicable Lender's obligation to purchase a participation in any unpaid Swing Line Lender made Loans pursuant to the Agentimmediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, deliver to the Agent for the account of including (a) any set-off, counterclaim, recoupment, defense or other right which such applicable Lender may have against Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower Company or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each applicable insolvency legislation or is otherwise required Lender are subject to be returned, such Lender shall promptly return to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (i) As it is understood that the purpose for the Swing Line Lender and the Majority Lenders agree otherwiseLoan is to fund AGCO's operating account, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (Loans and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay repayments to the Swing Line Lender Bank may be made on a sweep basis, requiring no formal notification from AGCO. The Swing Line Bank may at its discretion, upon three (3) Business Days' written notice to AGCO, choose to require written notification of Swing Line Loans from AGCO, but is not required to do so. At any time the Swing Line Loans. The Lenders are irrevocably directed by Bank makes a Swing Line Loan, each Relevant Borrower to make any Advance by way of Prime Rate Multicurrency Revolving Tranche Loan or Base Rate Loan Lender (as applicable) if so requested by other than the Swing Line Lender and pay the proceeds thereof directly Bank) shall be deemed, without further action by any Person, to have purchased from the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of Bank an unfunded participation in any such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower in an amount equal to such Multicurrency Revolving Tranche Loan Lender's Pro Rata Share (and for this purpose the Swing Line calculated in accordance with Section 2.11(e)(iv) if any Lender is irrevocably authorized by the Relevant Borrower to do soa Defaulting Lender) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that such Swing Line Loan and shall be obligated to fund such participation as a Multicurrency Revolving Tranche Loan at such time and in the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advancemanner provided below. Each such Multicurrency Revolving Tranche Loan Lender's obligation to participate in, purchase and fund such participating interests shall be absolute, irrevocable and unconditional and shall not be affected by any circumstance, including, without limitation, (1) any set-off, counterclaim, recoupment, defense or other right which such Lender unconditionally agrees to pay to the Agent for the account of or any other Person may have against the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to Bank or any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. other Person for any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. reason whatsoever; (2) the occurrence or continuance of any a Default or an Event of Default or the exercise termination of the Multicurrency Revolving Tranche Loan Commitments; (3) any rights by adverse change in the Agent under Section 13.2; and
13.26.2.4. the absence condition (financial or otherwise) of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced AGCO or any judgment being obtained other Person; (4) any breach of this Agreement by any Borrower or any other Lender; or (5) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. Each Borrower hereby consents to each such sale and assignment. Each Multicurrency Revolving Tranche Loan Lender agrees to fund its Pro Rata Share (calculated in accordance with Section 2.11(e)(iv) if any Lender is a Defaulting Lender) of an outstanding Swing Line Loan on (x) the Business Day on which demand therefor is made by the Swing Line Bank, provided that such demand is made not later than 11:00 a.m. (New York City time) on such Business Day, or (y) the first Business Day next succeeding such demand if such demand is made after such time. Upon any such assignment by the Swing Line Bank to any other Multicurrency Revolving Tranche Loan Lender of a participation in a Swing Line Loan, the Swing Line Bank represents and warrants to such other Multicurrency Revolving Tranche Loan Lender that it is the legal and beneficial owner of such interest being assigned by it, but makes no other
(ii) Unless the Swing Line Bank is the Administrative Agent, the Swing Line Bank shall provide to the Administrative Agent, on Friday of each week and on each date the Administrative Agent notifies the Swing Line Bank that any Borrower has made a borrowing request or the Issuing Administrative Agent otherwise requests the same, an accounting for the outstanding Swing Line Loans in form reasonably satisfactory to the Administrative Agent. At any time that the aggregate Unused Multicurrency Revolving Tranche Loan Commitments are less than US$25,000,000, the Swing Line Sublimit shall be reduced temporarily to such lesser amount; and (iii) Unless a Default or an Event of Default then exists, the Swing Line Bank against shall give AGCO and the Relevant Borrower.
13.26.3. If a Lender Administrative Agent at least seven (a "Defaulting Lender"7) fails days' prior written notice before exercising its discretion herein not to make payment on Swing Line Loans. AGCO must give ten (10) days' prior written notice to the due date therefor Administrative Agent and the then existing Swing Line Bank of any amount due from it for the account change in designation of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Bank. The replaced Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Bank shall continue to be a "Swing Line Lender in respect Bank" for purposes of such failure):
13.26.3.1. the repayment of any Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise Loans made prior to such overdue amountreplacement and outstanding after such replacement.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (Agco Corp /De)
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions set forth in this Agreement, Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the agrees to make Swing Line Lender will promptly request LOANS until the Agent on behalf Revolving Commitment Termination Date as Borrowers may from time to time request; PROVIDED, HOWEVER, that the aggregate outstanding principal amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter Loans shall not exceed the Swing Line Commitment at any time; PROVIDED FURTHER that in no event shall be treated as reduced the Outstanding Obligations at any time exceed the lesser of (x) the Combined Commitments then in effect and (y) an amount equal to nil, 300% of the Free Corporate Cash Flow for the four fiscal quarter period most recently ended on or before such time of determination. Swing Line Lender's Revolver Commitment Loans shall be increased by constitute Loans for all purposes hereunder. Subject to the amount of such reduction foregoing and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as other terms and conditions hereof, Borrowers may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further borrow, prepay and reborrow Swing Line Loan Loans as set forth herein until the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower Revolving Commitment Termination Date without premium or penalty.
(and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do sob) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled evidenced by a loan account or records maintained by Swing Line Lender in the Ordinary Course of Business. Upon the request of Swing Line Lender, Swing Line Lender's Swing Line Loans may be evidenced by a Swing Line Note, instead of or in addition to receive any payment which loan accounts. Swing Line Lender may attach schedules to its Swing Line Note and endorse thereon the Defaulting Lender would otherwise have been entitled to receive in date, amount and maturity of its Swing Line Loans and payments with respect thereto. Such loan accounts, records or Swing Line Note shall be conclusive absent manifest error of the Credit Facilities amount of such Swing Line Loans and payments thereon. Any failure so to record or any error in doing so shall not, however, limit or otherwise in affect the obligation of Borrowers to pay any amount owing with respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amountLoans.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (Apartment Investment & Management Co)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $10 million; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on September 30, 2000 if the Lenders pursuant to Section 2.4 to repay Term Loans are not made on or before such date or on the Revolving Loan Commitment Termination Date if the Term Loans are made and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than the Revolving Loan Commitment Termination Date. Amounts borrowed under this subsection 2.1A(iv) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. 37 EXECUTION With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 1:00 P.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Revolving Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If any Standby Instrument is thereafter drawn Immediately upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account funding of the Swing Line Loan, each Revolving Lender shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender's Rateable Portion of , each Advance requested by the Revolving Lender shall deliver to Swing Line Lender on behalf of an amount equal to its respective participation in same day funds at the Relevant Borrower Funding and Payment Office. In the event any Revolving Lender fails to repay make available to Swing Line Loans made by Lender the amount of such Swing Line Revolving Lender.
13.26.2. Except 's participation as provided in Subsection 13.26.4this paragraph, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting recover such amount on demand from such Revolving Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear together with interest payable by the Defaulting Lender to the Swing Line Lender thereon at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Effective Rate (in for three Business Days and thereafter at the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amountBase Rate. In the event that any receipt by the Issuing Bank Swing Line Lender receives a payment of any reimbursement or amount in which other amount is found to Revolving Lenders have been a transfer purchased participations as provided in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returnedthis paragraph, such Swing Line Lender shall promptly return distribute to each such Swing Line other Revolving Lender any portion thereof previously transferred to it by its Pro Rata Share of such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithpayment.
Appears in 1 contract
Sources: Credit Agreement (Autotote Corp)
Swing Line Loans. 13.26.1In addition to the other options available to ---------------- Borrower hereunder, up to $5,000,000 of the Swing Line Lender's Commitment shall be available for Swing Line Loans subject to the following terms and conditions. Unless Swing Line Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.10 hereof. All Swing Line Loans shall bear interest at ------------ the Adjusted ABR Rate. In no event shall the Swing Line Lender be required to fund a Swing Line Loan if it would increase the total aggregate outstanding Loans by Swing Line Lender hereunder plus its Percentage of Facility Later of Credit Obligations to an amount in excess of its Commitment. Upon request of the Swing Line Lender, each Lender irrevocably agrees to purchase its Percentage of any Swing Line Loan made by the Swing Line Lender regardless of whether the conditions for disbursement are satisfied at the time of such purchase, including the existence of a Default hereunder, provided that no Lender shall be -------- required to have the sum of its total outstanding Loans plus its Percentage of Facility Letters of Credit be greater than its Commitment. Such purchase shall take place on the date of the request by Swing Line Lender so long as such request is made by noon (Chicago time), otherwise on the Business Day following such request. All requests for purchase shall be in writing. From and after the date it is so purchased, each such Loan shall be treated as a Loan made by the purchasing Lender and not by the selling Lender for all purposes under this Agreement, and shall no longer be considered a Swing Line Loan except that all interest accruing on or attributable to such Loan for the period prior to the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the Swing Line Lender and all such amounts accruing on or attributable to such Loans for the Majority Lenders agree otherwiseperiod from and after the date of such purchase shall be paid when due by the Borrower to the Administrative Agent for the benefit of the purchasing Lender. If prior to purchasing its Percentage in a Swing Line Loan one of the events described in Section 8.7 or 8.8 shall have occurred and such event prevents the consummation ----------- --- of the purchase contemplated by preceding provisions, each Lender will purchase an undivided participating interest in the outstanding Swing Line Loan in an amount equal to its Percentage of such Swing Line Loan From and after the date of each Lender's purchase of its participating interest in a Swing Line Loan, if an Event of Default occurs then the Swing Line Lender receives any payment on account thereof the Swing Line Lender will promptly request distribute to such Lender its participating interest in such amount (appropriately adjusted, in the Agent on behalf case of each Relevant Borrower (interest payments, to reflect the period of time during which such Lender's participating interest was outstanding and for this purpose funded); provided however that in the Swing Line Lender is irrevocably authorized event that such payment was received by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by -------- ------- the Swing Line Lender and pay the proceeds thereof directly is required to be returned to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver will return to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it distributed by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithto it. No Swing Line Loan shall be outstanding for more than five (5) days at a time and Swing Line Loans shall not be outstanding for more than a total often (10) days during any month.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Golf Properties Inc)
Swing Line Loans. 13.26.1. 13.26.1 Unless the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions Shares of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection Section 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion Share of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. 13.26.2 Except as provided in Subsection Section 13.26.4, the obligations of each Lender under Subsection Section 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. 13.26.2.1 any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six6;
13.26.2.2. 13.26.2.2 any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. 13.26.2.3 the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. 13.26.2.4 the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. 13.26.3 If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection Section 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection Section 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that the overdue amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. 13.26.3.1 the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. 13.26.3.2 the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. 13.26.4 If for any reason reason, determined by the Agent to be prejudicial to the interests of any of the Syndicate, an Advance may not be made pursuant to Subsection Section 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line ObligationsAdvances.
13.26.5. 13.26.5 The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection Section 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1(i) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make $15,000,000 of the credit otherwise available to the Borrower under the Revolving Credit Commitments by making swing line loans (individually, a "Swing Line Loan"; collectively, the "Swing Line Loans") to the Borrower from time to time during the Revolving Credit Commitment Period; provided, that no Swing Line Loan shall be made if, after giving effect thereto, the aggregate principal amount of Revolving Credit Loans then outstanding plus the aggregate principal amount of Swing Line Loans then outstanding, plus the aggregate amount of L/C Obligations would exceed the Revolving Credit Commitments of the Revolving Credit Lenders. Unless Amounts borrowed by the Borrower under this subsection 2.1(b) may be repaid and, through but excluding the Termination Date, reborrowed. All Swing Line Loans shall be made as Base Rate Loans and may not be converted into Eurodollar Loans. In order to borrow a Swing Line Loan, the Borrower shall give the Swing Line Lender, with a copy to the Administrative Agent, 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 the amount of the requested Swing Line Loan which shall be in a minimum amount of $1,000,000 or whole multiples of $100,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Borrower at the office of the Swing Line Lender by crediting the account of the Borrower at such office with such proceeds.
(ii) The Swing Line Loans shall be evidenced by a Loan Account and, if requested by the Swing Line Lender, a promissory note of the Borrower, substantially in the form of Exhibit A-2 (the "Swing Line Note"), with appropriate insertions, payable to the order of the Swing Line Lender and representing the Majority Lenders agree otherwiseobligation of the Borrower to pay the unpaid principal amount of the Swing Line Loans, with interest thereon as prescribed in subsection 2.9. The Swing Line Note, if an Event any, shall (i) be dated the Closing Date, (ii) be stated to mature on the Termination Date and (iii) bear interest, payable on the dates specified in 2.9, for the period from the date thereof to the Termination Date on the unpaid principal amount thereof from time to time outstanding at the applicable interest rate per annum specified in subsection 2.9.
(iii) The Swing Line Lender, at any time in its sole and absolute discretion, may on behalf of Default occurs then the Borrower (which hereby irrevocably directs the Swing Line Lender will promptly to act on its behalf) request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to Lender, including the Swing Line Lender. At all times thereafter the Swing Line Commitment , to make a Revolving Credit Loan (which shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicableLoan) from the Lenders pursuant in an amount equal to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account Commitment Percentage of such Swing Line Lender in immediately available funds Loan (the purchase price for such Lender's participation interest in the relevant unreimbursed "Refunded Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest Loans") outstanding on such Lender's Rateable Share from the date such notice is given. Unless any of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate events described in clause (in the case reimbursement is to be made in U.S. Dollarsf) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.of
Appears in 1 contract
Swing Line Loans. 13.26.1(a) The Swing Line. Unless Subject to the terms and conditions set forth herein, the Swing Line Lender and may, but shall not be obligated to make loans in reliance upon the Majority agreements of the other Lenders agree otherwiseset forth in this Section 2.04 in Dollars (each such loan, if a “Swing Line Loan”) to the Borrowers from time to time on any Business Day during the Availability Period in an Event aggregate amount not to exceed at any time outstanding the amount of Default occurs then the Swing Line Lender will promptly request Sublimit, notwithstanding the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the fact that such Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way , when aggregated with the Applicable Percentage of Prime Rate Loan or Base Rate Loan (the Outstanding Amount of Revolving Credit Loans and Letter of Credit Obligations of the Revolving Credit Lender acting as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by may exceed the amount of such reduction Revolving Credit Lender’s Revolving Credit Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the Maximum Borrowing Amount, and (ii) the Lenders Revolving Credit Exposure of any Revolving Credit Lender shall make not exceed such adjusting payments amongst them in Revolving Credit Lender’s Revolving Credit Commitment, and provided, further, that the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under Borrowers shall not use the Revolver Facility reflect their respective Rateable Portions proceeds of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the to refinance any outstanding Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and Loan. Within the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay limits and subject to the Agent for the account discretion of the Swing Line Lender such Lender's Rateable Portion to make Swing Line Loans, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.06(a)(ii), and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Revolving Credit Loan. Immediately upon the making of a Swing Line Loan, each Advance requested by Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by a risk participation in such Swing Line Lender.
13.26.2. Except as provided Loan in Subsection 13.26.4, an amount equal to the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect product of such failure):
13.26.3.1. Revolving Credit Lender’s Applicable Percentage times the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line ObligationsLoan.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (Roadrunner Transportation Systems, Inc.)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $10,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Lender Loans shall be paid in full no later than that date; provided that the Swing Line LoansLoan Commitment shall expire immediately and without further action on June 30, 1997 if the initial Term Loans are not made on or before that date. The Lenders are irrevocably directed by each Relevant Borrower Amounts borrowed under this subsection 2.1A(v) may be repaid and reborrowed to make any Advance by way of Prime Rate but excluding the Revolving Loan or Base Rate Loan (as applicable) if so requested by Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and pay absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (New York City time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds thereof directly of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. At all times thereafter the If any portion of any such amount paid (or deemed to be paid) to Swing Line Commitment Lender should be recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may subsection 10.5. If for any reason the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be required deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans in an amount equal to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions its Pro Rata Share (calculated immediately prior to such termination of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Revolving Loan Commitments) of the unpaid amount of such Swing Line Loan the Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender will again promptly request an amount equal to its respective participation in same day funds at the Agent on behalf of the Relevant Borrower (Funding and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower Payment Office. In order to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each further evidence such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full participation (and without in any way limiting prejudice to the rights effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in respect form and substance reasonably satisfactory to such Lender and Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such failure):
13.26.3.1. the Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of Federal Funds Effective Rate for three Business Days and thereafter at the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2Base Rate. In the overdue amount shall bear interest payable by the Defaulting Lender to the event Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation interest in any unpaid Swing Line Loans pursuant to Subsection 13.26.4the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or of any other amount from the Relevant Borrower right which such Lender may have against Swing Line Lender, Company or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each Lender shall promptly return are subject to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions of this Agreement, and further subject to the agreement of each Swing Line Lender and the Majority Lenders agree otherwiseBorrower with respect to the Negotiated Rate to be applied, if an Event such Swing Line Lender agrees to make swing line loans (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time on any Business Day during the Revolving Credit Commitment Period (but excluding the ten consecutive Business Days immediately preceding the Revolving Credit Maturity Date), provided that immediately after making each Swing Line Loan, (i) the aggregate unpaid balance of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter Loans would not exceed either the Swing Line Commitment shall be treated as reduced to nil, the Amount or Swing Line Lender's Revolver Sublimit Commitment shall be increased Amount, (ii) the Aggregate Credit Exposure would not exceed the Aggregate Revolving Credit Commitment Amount, (iii) the Aggregate Credit Exposure denominated in Alternative Currency would not exceed the Alternative Currency Sublimit and (iv) except to the extent otherwise agreed by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request in its sole discretion and solely as to itself, at no time shall the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay aggregate Swing Line Loans made by such a Swing Line Lender.
13.26.2Lender exceed 20% of the Swing Line Commitment Amount. Except as provided in Subsection 13.26.4During the foregoing period, the obligations of each Lender Borrower may borrow, prepay in whole or in part and reborrow under Subsection 13.26.1 are unconditionalthe Swing Line Commitment, shall not be subject to any qualification or exception whatsoever and shall be performed all in accordance with the terms and conditions of this Agreement under all circumstances including:Agreement.
13.26.2.1(b) A Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless arrangements to eliminate such Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan shall have been made for the benefit of such Swing Line Lender and such arrangements are satisfactory to such Swing Line Lender. A Swing Line Lender shall not make a Swing Line Loan if, no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, it shall have received written notice from any lack Credit Party that the conditions set forth in Section 6 with respect thereto have not been satisfied.
(c) A Swing Line Lender may by written notice given to the Administrative Agent not later than 10:00 a.m. on any Business Day notify the Administrative Agent that such Swing Line Lender is requesting that each Lender, and the Administrative Agent may (with the consent of validity Required Lenders) or enforceability shall (at the request of Required Lenders) by written notice given to such Swing Line Lender not later than 10:00 a.m. on any Business Day require that each Lender, at the option of such Swing Line Lender or the Administrative Agent, as the case may be, (i) make a Revolving Credit Loan in an amount equal to its Commitment Percentage of the Relevant Borrower's obligations under outstanding principal balance of, and accrued and unpaid interest on, the Swing Line Loans, or (ii) purchase, unconditionally and irrevocably, without recourse or warranty, an undivided participating interest in the outstanding principal balance of, and accrued and unpaid interest on, the Swing Line Loans in an amount equal to its Commitment Percentage thereof. In case the Swing Line Lender, providing such written notice, made the Swing Line Loan denominated in an Alternative Currency, such Swing Line Lender shall be receiving requested funds from each Lender, in such Alternative Currency, unless such Swing Line Lender (at its option) shall have specified in a notice given pursuant to this Section 2.6 or Article Six;
13.26.2.22.3 that it will require reimbursement in Dollars. any In either such case (i) the Administrative Agent shall notify each Lender of the matters details thereof and of the amount of such Lender’s Revolving Credit Loan or participation interest, as the case may be, and (ii) each Lender shall, whether or not any Default shall have occurred and be continuing, any representation or warranty shall be accurate, any condition to the making of any loan hereunder shall have been fulfilled, or any other matter whatsoever, make the Revolving Credit Loan required to be made by it, or purchase the participation required to be purchased by it, under this paragraph by wire transfer of immediately available funds to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, (A) in the event that such Lender receives such notice prior to 12:00 noon on any Business Day, by no later than 3:00 p.m. on such Business Day, or (B) in the event that such Lender receives such notice at or after 12:00 noon on any Business Day, by no later than 1:00 p.m. on the immediately succeeding Business Day. Any Loans made pursuant to this paragraph (c) shall, for all purposes hereof, be deemed to be Revolving Credit Loans referred to in Section 6.2 2.1 and made pursuant to Section 2.5, and the Lenders’ obligations to make such Loans shall be absolute and unconditional. The Administrative Agent will make such Loans, or 6.3;
13.26.2.3the amount of such participations, as the case may be, available to the Applicable Swing Line Lender by promptly crediting or otherwise transferring the amounts so received, in like funds and in like currency, to such Swing Line Lender. Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.3 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be absolute and unconditional and without regard to the occurrence of any Default or Event of Default or the exercise of any rights compliance by the Borrower with any of its obligations under the Loan Documents.
(d) Each Lender shall indemnify and hold harmless the Administrative Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the and each Swing Line Lender or the Issuing Bank from and against the Relevant Borrower.
13.26.3. If a Lender any and all losses, liabilities (a "Defaulting Lender") fails to make payment including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the due date therefor part of such Lender to pay, or from any delay in paying the Administrative Agent any amount due from it for the account of the Swing Line such Lender pursuant is required to Subsection 13.26.1 pay in accordance with this Section 2.3 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender except in respect of such failure):
13.26.3.1. losses, liabilities or other obligations suffered by the Administrative Agent or a Swing Line Lender, as the case may be, to the extent resulting from the gross negligence or willful misconduct of the Administrative Agent or such Swing Line Lender, as the case may be, as determined by a court of competent jurisdiction in a final and non-appealable decision), and such Lender shall be entitled required to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear pay interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Administrative Agent for the account of such Swing Line Lender from the date such amount was due until paid in immediately available funds full, on the purchase price for unpaid portion thereof, at a rate of interest per annum equal to (i) from the date such Lender's participation interest in amount was due until the relevant unreimbursed Swing Line Advances. Each Lender shallthird day therefrom, the Federal Funds Rate, and (ii) thereafter, the Federal Funds Rate plus 2%, payable upon demand by such Swing Line Lender made to the Agent, deliver to the Lender. The Administrative Agent for the account of shall distribute such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds payments to such Swing Line Lender by such Lender at a rate per annum equal to upon receipt thereof in like funds as received.
(e) Whenever the Federal Funds Rate (in the case reimbursement Administrative Agent is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made reimbursed by the Lenders in Borrower, for the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount account of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in connection therewithpursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Sources: Credit Agreement (KOHLS Corp)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5A, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender’s outstanding Revolving Loans and Swing Line Lender’s Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender’s Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $150,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4A(ii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1A(ii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, (x) the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect and (y) Swing Line Lender shall not be required to make any Swing Line Loans at any time that there is a Defaulting Lender hereunder, unless Swing Line Lender has entered into arrangements reasonably satisfactory to it and Company to eliminate Swing Line Lender’s risk with respect to the participation in Swing Line Loans by all such Defaulting Lenders, including by requiring Company to cash collateralize each such Defaulting Lender’s Pro Rata Share of each Swing Line Loan. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4A(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 12:00 Noon (New York City time) at least one Business Day prior to the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Revolving Lenders to make Revolving Loans that are Alternate Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company’s accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Revolving Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day’s notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Revolving Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender’s participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Revolving Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Alternate Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender receives a payment of any amount in which other Revolving Lenders have purchased participations as contemplated therebyprovided in this paragraph, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the purchase price contrary notwithstanding, each Revolving Lender’s obligation to make Revolving Loans for such Lender's participation interest in the relevant unreimbursed purpose of repaying any Refunded Swing Line Advances. Each Lender shall, upon demand by such Loans pursuant to the second preceding paragraph and each Revolving Lender’s obligation to purchase a participation in any unpaid Swing Line Lender made Loans pursuant to the Agentimmediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, deliver to the Agent for the account of including (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower Company or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each Revolving Lender shall promptly return are subject to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1(i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. Unless The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Lenders agree otherwiseBorrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, if an Event shall have determined that the conditions set forth in Sections 5 and/or 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of Default occurs then the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Lender will promptly request Interest Period applicable thereto, the Agent date on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter which the Swing Line Commitment shall be treated as reduced to nilhave been terminated in accordance with Section 2.6, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders date on which the Loans shall make such adjusting payments amongst them in become due and payable pursuant to the manner contemplated provisions hereof, whether by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilityacceleration or otherwise. If any Standby Instrument is thereafter drawn upon which results in a further Each Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Negotiated Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5applicable thereto. The Swing Line Lender shall, forthwith upon its receipt shall disburse the proceeds of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances Loans at its office designated in relation Section 11.2 by crediting such proceeds to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or an account of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In maintained with the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS/Caremark Corp)
Swing Line Loans. 13.26.1. Unless the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do soa) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay As a convenience to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nilBorrower, the Swing Line Lender's Revolver Commitment shall be increased by , in its sole discretion, may make Swing Line Loans to the Borrower from time to time during the Availability Period for the Revolving Credit Facility, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of such reduction and outstanding Swing Line Loans exceeding the Lenders shall make such adjusting payments amongst them in Swing Line Sublimit or (ii) the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions sum of the Revolver Facilitytotal Revolving Credit Exposures exceeding the Aggregate Revolving Credit Commitments. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan Within the foregoing limits and subject to the terms and conditions set forth herein, the Swing Line Lender will again promptly request may make and the Agent on behalf Borrower may borrow, prepay and reborrow Swing Line Loans.
(b) Swing Line Loans shall be made available to the Borrower by means of a credit to a deposit account of the Relevant Borrower (and for this purpose with the Swing Line Lender is irrevocably authorized pursuant to arrangements mutually acceptable to the Borrower and the Swing Line Lender.
(c) The Swing Line Lender may by written notice given to the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from Administrative Agent not later than 10:00 a.m., on any Business Day require the Lenders pursuant to Section 2.4 acquire participations on such Business Day in all or a portion of the Swing Line Loans outstanding. Such notice shall specify the aggregate amount of Swing Line Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to repay that each Revolving Credit Lender, specifying in such notice such Revolving Credit Lender’s Revolving Credit Applicable Percentage of such Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advanceor Loans. Each Revolving Credit Lender hereby absolutely and unconditionally agrees agrees, upon receipt of notice as provided above, to pay to the Agent Administrative Agent, for the account of the Swing Line Lender, such Revolving Credit Lender’s Revolving Credit Applicable Percentage of such Swing Line Loan or Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations in Swing Line Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Credit Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.6 with respect 52450492_8 to Loans made by such Revolving Credit Lender (and Section 2.6 shall apply, mutatis mutandis, to the payment obligations of the Revolving Credit Lenders), and the Administrative Agent shall promptly pay to the Swing Line Lender the amounts so received by it from the Revolving Credit Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swing Line Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swing Line Loan shall be made to the Administrative Agent and not to the Swing Line Lender's Rateable Portion of each Advance requested . Any amounts received by the Swing Line Lender from the Borrower (or other party on behalf of the Relevant Borrower to repay Borrower) in respect of a Swing Line Loans Loan after receipt by the Swing Line Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Credit Lenders that shall have made by such their payments pursuant to this paragraph and to the Swing Line Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swing Line Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swing Line Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
13.26.2. Except as provided (d) Notwithstanding anything to the contrary contained in Subsection 13.26.4this Agreement, the obligations of each Lender under Subsection 13.26.1 are unconditional, this Section 2.4 shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in 2.19 and Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower2.20.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time and subject to the other terms and conditions hereof, to make a portion of the Tranche A Commitments available to Company from time to time during the period from the Effective Date to but excluding the Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Loan Commitment to be used for the purposes identified in subsection 2.5A(iv), notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Tranche A Loans and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in effect, may exceed Swing Line Lender's Tranche A Commitment. The original amount of the Swing Line Loan Commitment is $4,000,000; provided that any reduction of the Commitments made pursuant to subsection 2.4A or 2.4B which reduces the aggregate Tranche A Commitments to an amount less than the then current amount of the Swing Line Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to the amount of the Tranche A Commitments, as so reduced, without any further action on the part of Company or Swing Line Lender. The Swing Line Loan Commitment shall expire on the fifth Business Day prior to the Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date. Amounts borrowed under this subsection 2.1B may be repaid and reborrowed to but excluding the fifth Business Day prior to the Commitment Termination Date. Swing Line Lender shall not be obligated to make any Swing Line Loans if it has elected not to do so after the occurrence and during the Majority Lenders agree otherwise, if continuation of a Potential Event of Default of which it is aware or an Event of Default occurs then the Default. On Friday of each week, Swing Line Lender will promptly request notify each Lender of the Agent on behalf amount of each Relevant Borrower (and for Swing Line Loans then outstanding. Anything contained in this purpose Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Tranche A Commitments at any time exceed the Tranche A Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender is irrevocably authorized may, at any time in its sole and absolute discretion, deliver to Lenders (with a copy to Company), no later than 8:30 A.M. (Pacific time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by each Relevant Borrower Company) requesting Lenders to do so) for an Advance by way of Prime Rate Loan or make Tranche A Loans that are Base Rate Loan Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (as applicablethe "Refunded Swing Line Loans") from outstanding on the date such notice is given which Swing Line Lender requests Lenders pursuant to Section 2.4 prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of Tranche A Loans made by Lenders other than Swing Line Lender shall be immediately delivered to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Tranche A Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Tranche A Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Tranche A Loans and shall be due under the Tranche A Note of Swing Line Lender. Company hereby authorizes Swing Line Lender to charge Company's account with Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Tranche A Loans made by Lenders, including the Tranche A Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 subsection 10.5. If, as may be required a result of any bankruptcy or similar proceeding with respect to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders Company, Tranche A Loans are not made pursuant to Section 2.4 this subsection 2.1B in an amount sufficient to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply any amounts owed to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans, each Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated without giving effect to clauses (d) and (e) of the definition of Loan Exposure) of the unpaid amount together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to evidence such participation each Lender agrees to enter into a participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to all parties. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Tranche A Loans for the purpose of repaying any Refunded Swing Line Loan pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation interest in any unpaid Swing Line Loan pursuant to Subsection 13.26.4the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (a) any set-off, counterclaim, re coupment, defense or of any other amount from the Relevant Borrower right which such Lender may have against Swing Line Lender, Company or any other Person for any reason whatsoever; (b) the occurrence or continuation of an Event of Default or a Potential Event of Default; (c) any adverse change in respect the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided if such unpaid Swing Line Loan increased Total Utilization of Commitments (after giving effect to the repayment of any Tranche A Loan with the proceeds of such payment (other than pursuant to Section 2.6 or 6.2Swing Line Loan), transfer such obligation of each Lender is subject to such other the condition that one of the following must have occurred: (X) Swing Line Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event did not have actual knowledge that any of the conditions under Section 4 to the making of the applicable unpaid Swing Line Loans were not satisfied at the time such unpaid Swing Line Loans were made, (Y) such Lender had actual knowledge by receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise notices required to be returneddelivered to Lenders pursuant to subsection 6.1(ix) or otherwise, that any such condition had not been satisfied and such Lender shall promptly return failed to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such notify Swing Line Lender in connection therewithwriting that it had no obligation to make Tranche A Loans until such condition was satisfied (any such notice to be effective as of the date of receipt thereof by Swing Line Lender), or (Z) the satisfaction of any such condition not satisfied had been waived in accordance with subsection 10.6 prior to or at the time such unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1(a) The Swing Line. Unless Subject to the terms and conditions set forth herein, the Swing Line Lender may, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, make loans (each such loan, a “Swing Line Loan”) to the Borrowers from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Majority Lenders agree otherwiseLender acting as Swing Line Lender, if an Event may exceed the amount of Default occurs then such Lender’s Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed Loan Cap, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Lender’s Commitment, and provided, further, that the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only at the rate applicable to Base Rate Loans. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender will promptly request a risk participation in such Swing Line Loan in an amount equal to the Agent on behalf product of each Relevant Borrower (and for this purpose such Lender’s Applicable Percentage times the amount of such Swing Line Loan. The Swing Line Lender is irrevocably authorized by each Relevant Borrower to do soshall have all of the benefits and immunities (A) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay provided to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower Agent in Article IX with respect to make any Advance by way of Prime Rate Loan acts taken or Base Rate Loan (as applicable) if so requested omissions suffered by the Swing Line Lender in connection with Swing Line Loans made by it or proposed to be made by it as if the term “Agent” as used in Article IX included the Swing Line Lender with respect to such acts or omissions, and pay the proceeds thereof directly (B) as additionally provided herein with respect to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (Tilly's, Inc.)
Swing Line Loans. 13.26.1. Unless (a) During the Availability Period, subject to the terms and conditions hereof, Swing Line Lender agrees to make Swing Line Loans to the Borrower in the aggregate amount up to but not exceeding the Swing Line Lender and Sublimit; provided that after giving effect to the Majority Lenders agree otherwisemaking of any Swing Line Loan, if an Event in no event shall (i) the Total Utilization of Default occurs Commitments exceed the Commitments then in effect or (ii) unless otherwise agreed to in writing by the Swing Line Lender will promptly request Lender, the Agent on behalf aggregate amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way , Revolving Loans and Letters of Prime Rate Loan or Base Rate Loan (as applicable) if so requested Credit issued by the Swing Line Lender exceed the Swing Line Lender’s Commitments hereunder; provided that the Swing Line Lender shall not be required to make a Swing Line Loan to refinance an outstanding Swing Line Loan. Amounts borrowed pursuant to this Section 2.3 may be repaid and pay reborrowed during the proceeds thereof directly Availability Period. The Swing Line Lender’s Commitment shall expire on the Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Lender. At Loans and the Commitments shall be paid in full no later than such date.
(b) Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount; provided that a Swing Line Loan may be in an aggregate amount that is required to finance the reimbursement of a Letter of Credit drawing as contemplated by Section 2.4(d).
(c) The Swing Line Lender may by written notice given to the Administrative Agent not later than 1:00 p.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all times thereafter or a portion of the Swing Line Commitment Loans outstanding. Such notice shall be treated as reduced to nil, specify the aggregate amount of the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and Loans in which the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may will be required to ensure their respective participations participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions such notice such Lender’s Applicable Percentage of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further such Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further AdvanceLoans. Each Lender hereby absolutely and unconditionally agrees to pay pay, upon receipt of notice as provided above, to the Agent Administrative Agent, for the account of the Swing Line Lender Lender, such Lender's Rateable Portion ’s Applicable Percentage of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2Loan or Loans. Except as provided Each Lender acknowledges and agrees that, in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to making any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. Loan, the Swing Line Lender shall be entitled to receive rely, and shall not incur any payment which liability for relying, upon the Defaulting representation and warranty of the Borrower deemed made pursuant to Section 4.2, unless, at least one Business Day prior to the time such Swing Line Loan was made, the Required Lenders or the Borrower shall have notified the Swing Line Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.2(b) or (c) would otherwise not be satisfied if such Swing Line Loan were then made (it being understood and agreed that, in the event the Swing Line Lender shall have received any such notice, it shall have no obligation to make any Swing Line Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been entitled cured or otherwise shall have ceased to receive exist). Each Lender further acknowledges and agrees that its obligation to acquire participations in respect Swing Line Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Credit Facilities Commitments, and that each such payment shall be made without any offset, abatement, withholding or otherwise reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.6 with respect to Loans made by such Lender (and Section 2.6 shall apply, mutatis mutandis, to the payment obligations of any Loan Document; and
13.26.3.2. the overdue amount Lenders pursuant to this paragraph), and the Administrative Agent shall bear interest payable by the Defaulting Lender promptly remit to the Swing Line Lender at the rate payable amounts so received by it from the Relevant Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swing Line Loan acquired pursuant to this paragraph, and thereafter payments in respect of the such Swing Line Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not shall be made pursuant to Subsection 13.26.1 the Administrative Agent and not to reimburse the Swing Line Lender. Any amounts received by the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to Borrower (or other Person on behalf of the Agent for the account Borrower) in respect of such a Swing Line Lender in immediately available funds Loan after receipt by the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such unreimbursed amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swing Line Advances until Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal or to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall onlyAdministrative Agent, howeveras applicable, be made by the Lenders in the event if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swing Line Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the Borrower of its obligation to repay such Swing Line Loan.
(d) The Swing Line ▇▇▇▇▇▇ may resign as Swing Line Lender has not been reimbursed in full by upon 30 days prior written notice to the Relevant Borrower for interest on Administrative Agent, the amount of such unreimbursed Swing Line Obligations.
13.26.5Lenders and the Borrower. The Swing Line Lender shallmay be replaced at any time by written agreement among the Borrower, forthwith upon its receipt the Administrative Agent and the successor Swing Line Lender. The Administrative Agent shall notify the Lenders of any reimbursement such replacement of the Swing Line Lender. At the time any such replacement or resignation shall become effective, (in whole or in parti) the Borrower shall prepay any outstanding Swing Line Loans made by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, resigning or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such removed Swing Line Lender, without interest to (ii) upon such prepayment, the extent that interest is not payable by such resigning or removed Swing Line Lender shall surrender any Swing Line Note held by it to the Borrower for cancellation, and (iii) the Borrower shall issue, if so requested by the successor Swing Line Loan Lender, a new Swing Line Note to the successor Swing Line Lender, in connection therewiththe principal amount of the Swing Line Sublimit then in effect and with other appropriate insertions. From and after the effective date of any such replacement or resignation, (x) any successor Swing Line Lender shall have all the rights and obligations of a Swing Line Lender under this Agreement with respect to Swing Line Loans made thereafter and (y) references herein to the term “Swing Line Lender” shall be deemed to refer to such successor or to any previous Swing Line Lender, or to such successor and all previous Swing Line Lenders, as the context shall require.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Pinterest, Inc.)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to ---------------- the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5C, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $5,000,000; provided that any reduction of the Agent on behalf Revolving -------- Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall -------- expire immediately and without further action on September 30, 1999 if the Tranche C Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(vi) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 9:00 A.M. (San Francisco time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Lenders to make Revolving Dollar Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (a) the proceeds of such Revolving Dollar Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (b) on the day such Revolving Dollar Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Dollar Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note, if any, of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Dollar Loans and shall be due under the Revolving Note, if any, of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Dollar Loans made by Lenders, including the Revolving Dollar Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Dollar Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Lender fails to make available to Swing Line Lender the amount of such Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Dollar Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased participations as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Dollar Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender's obligation to purchase a participation interest in any unpaid Swing Line Loans pursuant to Subsection 13.26.4the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or of any other amount from the Relevant Borrower right which such Lender may have against Swing Line Lender, Company or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment an Event of Default or a Potential Event of Default; (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In c) the event that any receipt by the Issuing Bank occurrence of any reimbursement Material Adverse Effect; (d) any breach of this Agreement or any other amount is found Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to have been a transfer in fraud any of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required the foregoing; provided that -------- such obligations of each Lender are subject to be returned, such Lender shall promptly return to such the condition that (1) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (2) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Sources: Credit Agreement (Urs Corp /New/)
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions set forth herein, the Swing Line Lender and agrees to make Swing Line Loans to the Majority Lenders agree otherwiseBorrower from time to time prior to the Maturity Date in Dollars, if in an Event aggregate principal amount at any time outstanding that will not result in (x) the aggregate principal amount of Default occurs then outstanding Swing Line Loans exceeding the total Swing Line Commitment, (y) the outstanding Swing Line Loans of the Swing Line Lender will promptly request exceeding the Agent on behalf of each Relevant Borrower Swing Line Lender’s Swing Line Commitment or (and for this purpose z) the aggregate Revolving Credit Exposure exceeding the Total Revolving Credit Commitments; provided that the Swing Line Lender shall not be required to make a Swing Line Loan to refinance an outstanding Swing Line Borrowing. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swing Line Loans. Notwithstanding anything to the contrary contained in this Section 2.22 or elsewhere in this Agreement, in the event that a Revolving Credit Lender is irrevocably authorized by each Relevant Borrower a Defaulting Lender, no Swing Line Lender shall be required to do soissue or extend any Swing Line Loan, unless any Fronting Exposure in respect thereof, after giving effect to the extension of such Swing Line Loan, may be reallocated among Non-Defaulting Lenders in accordance with Section 2.21(a)(iv) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to or, if such reallocation is not available in accordance with such Section, the Swing Line Lender has entered into arrangements satisfactory to it, in its sole discretion, and the Borrower to eliminate the Swing Line Loans. The Lenders are irrevocably directed Lender’s risk with respect to the participation in Swing Line Loans by each Relevant all such Defaulting Lenders, which may include prepaying such Swing Line Loans while any Fronting Exposure exists in relation thereto.
(b) To request a Swing Line Borrowing, the Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by shall notify the Swing Line Lender and pay of such request by not later than 11:00 a.m., New York City time on the proceeds thereof directly to day of the proposed Swing Line Lender. At all times thereafter the Borrowing by delivering a Swing Line Commitment Borrowing Request. Each such notice and Swing Line Borrowing Request shall be treated as reduced to nil, irrevocable and shall specify (i) the Swing Line Lender's Revolver Commitment requested date (which shall be increased by a Business Day), (ii) the amount of the requested Swing Line Borrowing, (iii) the term of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan and (iv) the location and number of the Borrower’s account to which funds are to be disbursed. The Swing Line Lender shall make each Swing Line Loan in accordance with Section 2.02 on the proposed date thereof by wire transfer of immediately available funds by 3:00 p.m., New York City time, to the account of the Borrower.
(c) Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender will again promptly request the Agent on behalf a risk participation in such Swing Line Loan in an amount equal to such Revolving Credit Lender’s Pro Rata Percentage of the Relevant Borrower (and for this purpose such Swing Line Loan. The Swing Line Lender shall deliver the Swing Line Lender is irrevocably authorized by Borrowing Request to the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Administrative Agent which shall promptly deliver such Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply Borrowing Request to each such further AdvanceRevolving Credit Lender. Each Revolving Credit Lender hereby absolutely and unconditionally agrees agrees, upon receipt of notice of the Swing Line Borrowing Request, to pay to the Administrative Agent for the account of the Swing Line Lender, such Revolving Credit Lender’s Pro Rata Percentage of such Swing Line Loan or Loans. Each Revolving Credit Lender acknowledges and agrees that its respective obligation to acquire participations in Swing Line Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Credit Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.02 with respect to Loans made by such Revolving Credit Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swing Line Lender the amounts so received by it from the Revolving Credit Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swing Line Loan acquired pursuant to this paragraph (c), and thereafter payments by the Borrower in respect of such Swing Line Loan shall be made to the Administrative Agent and not to the Swing Line Lender's Rateable Portion . Any amounts received by a Swing Line Lender from the Borrower (or any other party on behalf of each Advance requested the Borrower) in respect of a Swing Line Loan after receipt by the Swing Line Lender on behalf of the Relevant Borrower proceeds of a sale of participations therein shall be remitted promptly to repay Swing Line Loans the Administrative Agent; any such amounts received by the Administrative Agent shall be remitted promptly by the Administrative Agent to the Revolving Credit Lenders that shall have made by such their payments pursuant to this paragraph and to the Swing Line Lender.
13.26.2. Except , as their interests may appear; provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to that any qualification or exception whatsoever and such payment so remitted shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred repaid to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or to the Issuing Bank against Administrative Agent, as applicable, if and to the Relevant Borrowerextent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swing Line Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof otherwise expressly provided herein.
13.26.3. If (d) At any time after any Revolving Credit Lender has purchased and funded a Lender (risk participation in a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of Swing Line Loan, if the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until receives any payment on account of such Swing Line Loan, the Swing Line Lender has will distribute to such Revolving Credit Lender its Pro Rata Percentage thereof in the same funds as those received by the Swing Line Lender. If any payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of received by the Swing Line Lender in respect of such failure):
13.26.3.1. principal or interest on any Swing Line Loan is required to be returned to the Borrower by the Swing Line Lender shall be entitled under any circumstances (including pursuant to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable settlement entered into by the Defaulting Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender at the rate payable by the Relevant Borrower in respect its Pro Rata Percentage thereof on demand of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Administrative Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation plus interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share thereon from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until demand to the date of delivery of such funds to such Swing Line Lender by such Lender amount is returned, at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5Effective Rate. The Swing Line Lender shall, forthwith Administrative Agent will make such demand upon its receipt the request of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to . The obligations of the extent that interest is not payable by such Swing Line Lender Lenders under this clause shall survive the payment in connection therewithfull of the Obligations and the termination of this Agreement.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a "Swing Line Loan" and, collectively, the "Swing Line Loans") to one or more Borrowers from time to time during the Swing Line Commitment Period. Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Majority Company
(b) On any Business Day on which a Swing Line Loan shall be due and payable and shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders agree otherwise, if and the applicable Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Credit Loans made as ABR Advances to such Borrower (each such borrowing, a "Mandatory Borrowing"), shall be made by all Lenders pro rata based on each such Lender's Commitment Percentage on the Swing Line Lender will promptly request Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) the amount of such reduction Mandatory Borrowing may not comply with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(c) Upon each receipt by a further Swing Line Loan Lender of notice of an Event of Default from the Agent pursuant to Section 10.5, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the Relevant Borrower (and for this purpose outstanding balance of the Swing Line Loans (each, a "Swing Line Participation Amount"). Each Lender is irrevocably authorized by the Relevant Borrower to do so) shall also be liable for an Advance amount equal to the product of its Commitment Percentage and any amounts paid by way a Borrower pursuant to this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of Prime Rate any Default or Event of Default or the compliance by any Borrower with any of its obligations under the Loan or Base Rate Loan Documents.
(as applicabled) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice of an Event of Default from the Lenders Agent pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 10.5, such Lender shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay promptly make available to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount at the office of the Agent specified in Section 12.2, in lawful money of the United States and in immediately available funds. The Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of the Relevant Borrower promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by hold harmless the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying the Agent any amount such Lender is required by notice from the Agent to pay in accordance with this Section upon receipt of notice of an Event of Default from the Agent pursuant to Section 10.5 (except in respect of losses, liabilities or other obligations suffered by the Agent or the Issuing Bank against Swing Line Lender, as the Relevant Borrower.
13.26.3. If a case may be, resulting from the gross negligence or willful misconduct of the Agent or the Swing Line Lender, as the case may be), and such Lender (a "Defaulting Lender") fails shall pay interest to make payment on the due date therefor of any amount due from it Agent for the account of the Swing Line Lender pursuant from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to Subsection 13.26.1 (i) from the balance thereof for date such amount was due until the time being unpaid being referred third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender. The Agent shall distribute such interest payments to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount upon receipt thereof in like funds as received.
(plus interest as provided belowe) in full (and without in any way limiting Whenever the rights Agent is reimbursed by a Borrower for the account of the Swing Line Lender for any payment in respect of such failure):
13.26.3.1. the connection with Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be Loans made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.to
Appears in 1 contract
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans in Dollars under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied or waived and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been terminated in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders agree otherwise, if and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Section 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”) shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Swing Line Lender will promptly request Domestic Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) whether the amount of such reduction Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(c) Upon each receipt by a further Swing Line Loan Lender of notice from the Administrative Agent, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the Relevant Borrower (and for this purpose outstanding balance of the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan Loans (as applicable) from the Lenders pursuant to Section 2.4 to repay that each, a “Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further AdvanceParticipation Amount”). Each Lender unconditionally agrees to pay shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.2 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be unconditional and without regard to the occurrence of any Default or the compliance by the Borrower with any of its obligations under the Loan Documents.
(d) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice from the Administrative Agent, such Lender shall promptly make available to the Administrative Agent for the account of the Swing Line Lender such Lender's Rateable Portion its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in Dollars and in immediately available funds. The Administrative Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever Administrative Agent and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying, the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section 2.2 (except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Issuing Bank against Swing Line Lender, as the Relevant Borrower.
13.26.3. If a case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender (a "Defaulting Lender") fails shall pay interest to make payment on the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender pursuant from the date such amount was due until paid in full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to Subsection 13.26.1 (i) from the balance thereof for date such amount was due until the time being unpaid being referred third day therefrom, the Federal Funds Effective Rate (but not less than 0.0%), and (ii) thereafter, the Federal Funds Effective Rate (but not less than 0.0%) plus 2%, payable upon demand by the Swing Line Lender. The Administrative Agent shall distribute such interest payments to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount upon receipt thereof in like funds as received.
(plus interest as provided belowe) in full (and without in any way limiting Whenever the rights Administrative Agent is reimbursed by the Borrower for the account of the Swing Line Lender for any payment in respect of such failure):
13.26.3.1. the connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender shall be entitled pursuant to receive any this Section 2.2, the Administrative Agent will promptly remit such payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amountLender.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS HEALTH Corp)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $5,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on December 31, 1998 if the initial Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(iv) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 A.M. (Charlotte, North Carolina time) on the first Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Revolving Loan Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Loan Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Administrative Agent and Swing Line Lender to charge Company's accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Revolving Loan Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Loan Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share of the Revolving Loan Commitments (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Revolving Loan Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Revolving Loan Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Revolving Loan Lender fails to make available to Swing Line Lender the amount of such Revolving Loan Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Revolving Loan Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender receives a payment of any amount in which other Revolving Loan Lenders have purchased participations as contemplated therebyprovided in this paragraph, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds shall promptly distribute to each such other Revolving Loan Lender its Pro Rata Share of such payment. Anything contained herein to the purchase price for such contrary notwithstanding, each Revolving Loan Lender's participation interest in obligation to make Revolving Loans for the relevant unreimbursed purpose of repaying any Refunded Swing Line Advances. Each Lender shall, upon demand by such Loans pursuant to the second preceding paragraph and each Revolving Loan Lender's obligation to purchase a participation in any unpaid Swing Line Lender made Loans pursuant to the Agentimmediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, deliver to the Agent for the account of including (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower Company or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; PROVIDED that such obligations of each Revolving Loan Lender shall promptly return are subject to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Sources: Credit Agreement (Penton Media Inc)
Swing Line Loans. 13.26.1. Unless (i) Subject to the terms and conditions of this Agreement, the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the agrees to make swing line loans (each a “Swing Line Lender will promptly request A Loan” and, collectively, the Agent on behalf of each Relevant Borrower (and for this purpose the “Swing Line Lender is irrevocably authorized by each Relevant Borrower to do soA Loans”) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay in Dollars to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower from time to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter time during the Swing Line Commitment shall be treated as reduced to nilPeriod, provided that immediately after giving effect thereto, (i) the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account aggregate unpaid balance of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by A Loans shall not exceed the Swing Line Lender on behalf A Commitment Amount, and (ii) the Aggregate A Credit Exposure of all A Lenders shall not exceed the Relevant Borrower to repay Aggregate Revolving Credit A Commitment Amount. During the Swing Line Loans made by such Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4A Commitment, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed all in accordance with the terms and conditions of this Agreement under all circumstances including:Agreement.
13.26.2.1. any lack (ii) Subject to the terms and conditions of validity or enforceability this Agreement, the Swing Line Lender agrees to make swing line loans (each a “Swing Line B Loan” and, collectively, the “Swing Line B Loans”) in Dollars to the Borrower from time to time during the Swing Line Commitment Period, provided that immediately after giving effect thereto, (i) the aggregate unpaid balance of the Relevant Borrower's Swing Line B Loans shall not exceed the Swing Line B Commitment Amount, and (ii) the Aggregate B Credit Exposure of all B Lenders shall not exceed the Aggregate Revolving Credit B Commitment Amount. During the Swing Line Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line B Commitment, all in accordance with the terms and conditions of this Agreement.
(b) The Swing Line Lender shall not be obligated to make any Swing Line A or B (as applicable) Loan at a time when any A or B (as applicable) Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line A or B (as applicable) Loan if the Administrative Agent or any A or B (as applicable) Lender, by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 2.6 or Article Six;
13.26.2.2. any 6 have not been satisfied and such conditions remain unsatisfied as of the matters referred requested time of the making such Swing Line Loan. Each Swing Line A or B (as applicable) Loan shall be due and payable on the earliest to occur of the last day of the Interest Period applicable thereto, fifteen days prior to the Maturity Date, the date on which the Swing Line A or B (as applicable) Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Swing Line A or B (as applicable) Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line A or B (as applicable) Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the A or B (as applicable) Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit A or B (as applicable) Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(g) or (h)), in which case a borrowing of Revolving Credit A or B (as applicable) Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all A or B (as applicable) Lenders pro rata based on each such Lender’s applicable Commitment Percentage on (i) such Business Day if such notice was given prior to 11:00 a.m. or (ii) the immediately succeeding Business Day if such notice was given after 11:00 a.m. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line A or B (as applicable) Loan. Each A or B (as applicable) Lender irrevocably agrees to make a Revolving Credit A or B (as applicable) Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) the amount of such Mandatory Borrowing may not comply with the minimum amount for A or B (as applicable) Loans otherwise required hereunder, (ii) whether any condition specified in Section 6.2 6 is then unsatisfied, (iii) whether a Default or 6.3;an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all A or B (as applicable) Loans then outstanding, (vi) the Aggregate A or B (as applicable) Credit Exposure at such time and (vii) the Aggregate Revolving Credit A or B (as applicable) Commitment Amount at such time.
13.26.2.3(d) Upon each receipt by an A or B (as applicable) Lender of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line A or B (as applicable) Loans (including accrued interest thereon) in an amount equal to the product of its applicable Commitment Percentage and the outstanding amount of the Swing Line A or B (as applicable) Loans plus all accrued and unpaid interest thereon (the “Swing Line Participation Amount”). Each A or B (as applicable) Lender shall also be liable for an amount equal to the product of its applicable Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.3 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be absolute and unconditional and without regard to the occurrence of any Default or Event of Default or the exercise of any rights compliance by the Agent Borrower with any of its obligations under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant BorrowerLoan Documents.
13.26.3. If a (e) In furtherance of subsection (d) above, upon each receipt by an A or B (as applicable) Lender (a "Defaulting Lender") fails of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, such Lender shall promptly make payment on available to the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender its Swing Line A or B (as applicable) Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each A or B (as applicable) Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred immediately preceding sentence to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment promptly upon receipt thereof in like funds as received. Each A or B (as applicable) Lender shall indemnify and hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of that such Lender to pay, or from any delay in paying the Administrative Agent any amount such Lender is required to pay in accordance with this Section 2.3 (plus except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall be required to pay interest as provided below) in full (and without in any way limiting to the rights Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in respect full, on the unpaid portion thereof, at a rate of interest per annum equal to (i) from the date such failure):
13.26.3.1. amount was due until the third day therefrom, the Federal Funds Rate, and (ii) thereafter, the Federal Funds Rate plus 2%, payable upon demand by the Swing Line Lender Lender. The Administrative Agent shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear distribute such interest payable by the Defaulting Lender payments to the Swing Line Lender at upon receipt thereof in like funds as received.
(f) Whenever the rate payable Administrative Agent is reimbursed by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated therebyBorrower, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in connection therewithpursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Building Materials Investment Corp)
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Company from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Company in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $15,000,000; PROVIDED that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Company, Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; PROVIDED that the Swing Line Loan Commitment shall expire immediately and without further action on April 1, 1998 if the Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the Revolving Loan Commitments then in effect. With respect to any Swing Line Loans which have not been voluntarily prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Agent (with a copy to Company), no later than 10:00 A.M. (New York City time) at least one Business Day prior to the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Company) requesting Revolving Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given which Swing Line Lender requests Revolving Lenders to prepay. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Revolving Lenders other than Swing Line Lender shall be immediately delivered by Agent to Swing Line Lender (and not to Company) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Company hereby authorizes Agent and Swing Line Lender to charge Company's accounts with Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Revolving Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Company from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Revolving Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Revolving Lender shall be deemed to, and hereby agrees to, have purchased a participation in such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line Lender an amount equal to its respective participation in same day funds at the Funding and Payment Office. In order to further evidence such participation (and without prejudice to the effectiveness of the participation provisions set forth above), each Lender agrees to enter into a separate participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In the event any Revolving Lender fails to make available to Swing Line Lender the amount of such Revolving Lender's participation as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Revolving Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by Base Rate. In the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the event Swing Line Lender receives a payment of any amount in which other Revolving Lenders have purchased participations as contemplated therebyprovided in this paragraph, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds shall promptly distribute to each such other Revolving Lender its Pro Rata Share of such payment. Anything contained herein to the purchase price for such contrary notwithstanding, each Revolving Lender's participation interest in obligation to make Revolving Loans for the relevant unreimbursed purpose of repaying any Refunded Swing Line Advances. Each Lender shall, upon demand by such Loans pursuant to the second preceding paragraph and each Revolving Lender's obligation to purchase a participation in any unpaid Swing Line Lender made Loans pursuant to the Agentimmediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, deliver to the Agent for the account of including (a) any set-off, counterclaim, recoupment, defense or other right which such Revolving Lender may have against Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower Company or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Company or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; PROVIDED that such obligations of each Revolving Lender shall promptly return are subject to such the condition that (X) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions set forth in this Agreement, Swing Line Lender agrees to make Swing Line Loans until the Maturity Date in such amounts as Borrower may from time to time request; provided, however, that (i) -------- ------- the aggregate principal amount of all Swing Line Loans shall not exceed the Swing Line Sublimit at any time, and (ii) the Outstanding Revolving Obligations of each Lender shall not exceed such Lender's Revolving Commitment and the Majority Outstanding Revolving Obligations of all Lenders agree otherwise, if an Event of Default occurs then shall not exceed the combined Revolving Commitments at any time. Swing Line Lender may terminate or suspend the Swing Line Lender will promptly request at any time in its sole discretion upon Requisite Notice to Borrower. Without the Agent on behalf consent of each Relevant all Requisite Lenders and Swing Line Lender, no Swing Line Loan shall be made during the continuation of a Default or Event of Default. Borrower (may borrow, repay and for reborrow under this purpose the Section; provided, however, that Swing Line Lender is irrevocably authorized by each Relevant Borrower may terminate or suspend its -------- ------- commitment to do somake new Swing Line Loans at any time in its sole discretion upon at least 24 hours Requisite Notice to Borrower.
(b) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Unless notified to the contrary by Swing Line Lender, Borrower may request Swing Line Loans in the Minimum Amount therefor upon Requisite Notice made to Swing Line Lender not later than the Requisite Time therefor. Each such request for a Swing Line LoansLoan shall constitute a representation and warranty by Borrower that the conditions set forth in Sections 4.02(a) and (b) are ---------------- --- satisfied. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way Promptly after receipt of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the such request, Swing Line Lender and pay shall obtain telephonic verification from the proceeds thereof directly to the Administrative Agent that there is availability for such Swing Line LenderLoan under the Revolving Commitments. At all times thereafter the Upon receiving such verification, Swing Line Commitment Lender shall make such Swing Line Loan available to Borrower. Upon the making of a Swing Line Loan, each Lender shall be treated as reduced deemed to nil, the have purchased from Swing Line Lender a risk participation therein in an amount equal to that Lender's Revolver Commitment shall be increased by Pro Rata Share times the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further ----- Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower Loan.
(and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do soc) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a fluctuating rate per annum equal to the Federal Funds rate of interest payable on Base Rate Loans (in plus the case reimbursement is Applicable Amount, if any) upon demand of Swing Line Lender and on the Maturity Date. Swing Line Lender shall be responsible for invoicing Borrower (or notifying Administrative Agent to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollarsso invoice Borrower) for such periodinterest. Such The interest payable on Swing Line Loans is solely for the account of Swing Line Lender.
(d) Borrower shall repay each Swing Line Loan on the earliest of (i) the fifth Business Day after it is made and (ii) the Maturity Date. Borrower shall repay the principal amount of each Swing Line Loan by payment directly to Swing Line Lender or by debit at a demand deposit account at the Swing Line Lender not later than the Requisite Time for payments hereunder. If the conditions precedent set forth in Section 4.02 can be satisfied, Borrower may request a ------------ Borrowing of Loans to repay Swing Line Lender pursuant to Section 2.02, or, ------------ failing to make such request, Borrower shall be deemed to have requested a Borrowing of Base Rate Loans on such payment date pursuant to subsection (e) below.
(e) If Borrower fails to timely make any principal of or interest payment on Swing Line Loans, Swing Line Lender shall notify the Administrative Agent of such fact and the unpaid amount. The Administrative Agent shall promptly notify each Lender of its Pro Rata Share of such amount by Requisite Notice. Each Lender shall make funds in an amount equal its Pro Rata Share of such amount available to the Administrative Agent at the Administrative Agent's Office not later than the Requisite Time for payments hereunder on the following Business Day. The obligation of each Lender to make such payment shall onlybe absolute and unconditional and shall not be affected by the occurrence of an Event of Default or any other occurrence or event. Any such payment shall not relieve or otherwise impair the obligation of Borrower to repay Swing Line Lender for any amount of Swing Line Loans, howevertogether with interest as provided herein.
(f) If the conditions precedent set forth in Section 4.02 can be satisfied ------------ (except for the giving of a Request for Extension of Credit) on any date Borrower is obligated to make, be made but fails to make, a repayment of Swing Line Loans, the funding by the Lenders pursuant to subsection (d) above shall be deemed to be part of a Borrowing of Base Rate Loans (without regard to the Minimum Amount therefor) requested by Borrower. If the conditions precedent set forth in Section 4.02 cannot be satisfied on the event date Borrower is obligated to ------------ make, but fails to make, such payment, the funding by the Lenders pursuant to subsection (d) above shall be deemed to be a funding by each Lender of its participation in such Swing Line Loans, and such funds shall be payable by Borrower upon demand and shall bear interest at the Default Rate, and each Lender making such funding shall thereupon acquire a pro rata participation, to the extent of such payment, in the claim of Swing Line Lender has not been reimbursed in full by the Relevant against Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2)and shall share, transfer in accordance with that pro rata participation, in any payment made by Borrower with respect to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewithclaim.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions hereof, the Swing Line Lender and Bank may in its discretion make swing line loans (the Majority Lenders agree otherwise, if an Event of Default occurs then “Swing Line Loans”) to the Borrower from time to time until the Termination Date or until the Swing Line Lender will promptly request Commitment is terminated in accordance with the Agent on behalf terms hereof in the aggregate up to the amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized Commitment for periods requested by each Relevant the Borrower and agreed to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender Bank; provided, that, no Swing Line Loan shall be made if, after giving effect to the making of such Loan and pay the simultaneous application of the proceeds thereof directly to thereof, the Total Exposure would exceed the Total Commitment. Within the foregoing limits, the Borrower may borrow, repay and reborrow under the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nilCommitment, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and limitations hereof.
(b) The Borrower may request a Swing Line Loan to be made on any Business Day. Each request for a Swing Line Loan shall be in writing (or by telephone promptly confirmed in writing) and delivered to the Swing Line Bank not later than 12:00 noon, Philadelphia time, on the Business Day such Swing Line Loan is to be made, specifying in each case (i) the amount to be borrowed, (ii) the requested borrowing date, (iii) whether the interest rate applicable to such Swing Line Loan is to be: (A) the Base Rate or (B) an interest rate mutually agreed upon by the Borrower and the Swing Line Bank and (iv) the date such Swing Line Loan is to be repaid (the “Swing Line Repayment Date”). The request for such Swing Line Loan shall be irrevocable. Provided that all applicable conditions of this Agreement under all circumstances including:precedent contained in Section 4.2 hereof have been satisfied, the Swing Line Bank shall, not later than 4:00 p.m., Philadelphia time, on the date specified in the Borrower’s request for such Swing Line Loan, make such Swing Line Loan by crediting the Borrower’s deposit account with the Swing Line Bank.
13.26.2.1. any lack of validity or enforceability (c) The obligation of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any Borrower to repay the Swing Line Loans shall be evidenced by a promissory note of the matters referred Borrower dated the date hereof, payable to the order of the Swing Line Bank in the principal amount of the Swing Line Commitment and substantially in the form of Exhibit B-2 (as amended, supplemented or otherwise modified from time to time, the “Swing Line Note”).
(d) Interest shall accrue on the outstanding principal balance of a Swing Line Loan at the interest rate chosen by the Borrower in accordance with Section 2.2(b) with respect to such Swing Line Loan and shall be payable on each applicable Interest Payment Date and upon the repayment of such Swing Line Loan.
(e) A Swing Line Loan shall be repaid on the earlier of (i) the Termination Date and (ii) the Swing Line Repayment Date for such Swing Line Loan. Unless the Borrower shall have notified the Agent prior to 11:00 a.m., Philadelphia time, on such Swing Line Repayment Date that the Borrower intends to repay such Swing Line Loan with funds other than the proceeds of a Revolving Credit Loan, the Borrower shall be deemed to have given notice to the Agent requesting the Banks to make a Revolving Credit Loan which shall be a Base Rate Borrowing in accordance with Section 2.1 on the Swing Line Repayment Date in an aggregate amount equal to the amount of such Swing Line Loan plus interest thereon, and (A) subject to satisfaction or waiver of the conditions specified in Section 6.2 or 6.3;
13.26.2.3. 4.2, the occurrence Banks shall, on the Swing Line Repayment Date, make a Revolving Credit Loan which shall be a Base Rate Borrowing, in an aggregate amount equal to the amount of any Default or Event such Swing Line Loan plus interest thereon, the proceeds of Default or the exercise of any rights which shall be applied directly by the Agent under Section 13.2to repay the Swing Line Bank for such Swing Line Loan plus accrued interest thereon; and
13.26.2.4. and provided, further, that if for any reason the absence proceeds of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained such Base Rate Borrowing are not received by the Swing Line Lender or Bank on the Issuing Swing Line Repayment Date in an aggregate amount equal to the amount of such Swing Line Loan plus accrued interest, the Borrower shall reimburse the Swing Line Bank against on the Relevant Borrowerday immediately following the Swing Line Repayment Date, in same day funds, in an amount equal to the excess of the amount of such Swing Line Loan over the aggregate amount of such Base Rate Borrowing, if any, received plus accrued interest thereon.
13.26.3(f) In the event that the Borrower shall fail to repay the Swing Line Bank as provided in Section 2.2(e) in an amount equal to the amount required under Section 2.2(e), the Agent shall promptly notify each Bank of the unpaid amount of such Swing Line Loan and of such Bank’s respective participation therein in an amount equal to such Bank’s Commitment Percentage of such Swing Line Loan. If a Lender Each Bank shall make available to the Agent for payment to the Swing Line Bank an amount equal to its respective participation therein (a "Defaulting Lender") including without limitation its pro rata share of accrued but unpaid interest thereon), in same day funds, at the office of the Agent specified in such notice, not later than 11:00 a.m., Philadelphia time, on the Business Day after the date the Agent notifies each Bank. In the event that any Bank fails to make payment on available to the due date therefor Agent the amount of any such Bank’s participation in such unpaid amount due from it for the account of as provided herein, the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender Bank shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue recover such amount shall bear on demand from such Bank together with interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender thereon at a rate per annum equal to the Federal Funds Base Rate (for each day during the period between the Swing Line Repayment Date and the date on which such Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the case reimbursement is Agent its pro rata share of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to be made in U.S. Dollarsmake available to the Agent its pro rata share of such unpaid amount on the Swing Line Repayment Date. The Agent shall distribute to each Bank which has paid all amounts payable by it under this Section 2.2(f) or with respect to the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for unpaid amount of any Swing Line Loan, such period. Such payment shall only, however, be made Bank’s Commitment Percentage of all payments received by the Lenders Agent from the Borrower in the event and to the extent repayment of such Swing Line Lender Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has not been reimbursed paid all amounts payable by it under this Section 2.2(f) shall have a direct right to repayment of such amounts from the Borrower subject to the procedures for repaying Banks set forth in full by this Section 2.2.
(g) In the Relevant event the Commitments are terminated in accordance with Section 2.8 hereof, the Swing Line Commitment shall also be terminated automatically. In the event the Borrower for interest on reduces the Total Commitment to less than the Swing Line Commitment, the Swing Line Commitment shall immediately be reduced to an amount equal to the Total Commitment. In the event the Borrower reduces the Total Commitment to less than the outstanding principal amount of the Swing Line Loans, the Borrower shall immediately repay the amount of such unreimbursed by which the outstanding Swing Line ObligationsLoans exceed the Swing Line Commitment as so reduced plus accrued interest thereon.
13.26.5. The (h) At no time shall there be more than two outstanding Swing Line Lender shallLoans.
(i) Each Swing Line Loan shall be in an original principal amount of $100,000 or multiples of $50,000 in excess thereof.
(j) The Borrower shall have the right at any time and from time to time to prepay any Swing Line Loan, forthwith upon its receipt of any reimbursement (in whole or in part) by , without premium or penalty, upon prior written, telecopy or telephonic notice to the Relevant Borrower for any unreimbursed Swing Line Advances in relation Bank given no later than 1:00 p.m., Philadelphia time, on the date of any proposed prepayment. Each notice of prepayment shall specify the Swing Line Loan to which other Lenders have purchased a participation be prepaid and the amount to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such amount on such date, with accrued interest thereon.
(k) In addition to making Swing Line Loans pursuant to Subsection 13.26.4the foregoing provisions of this Section 2.2, or of any other amount the Swing Line Bank may also make Swing Line Loans to the Borrower without the requirement for a specific request from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share 2.2(b) in accordance with the provisions of such reimbursement or other amount. In the event that any receipt by agreements between the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Borrower and the Swing Line Lender any portion thereof previously transferred Bank relating to it by such the Borrower’s deposit, sweep and other accounts at the Swing Line Lender, without interest Bank and related arrangements and agreements regarding the management and investment of Borrower’s cash assets as in effect from time to time (the “Cash Management Agreements”) to the extent that interest is of the daily aggregate net negative balance in the Borrower’s accounts which are subject to the provisions of the Cash Management Agreements. Swing Line Loans made pursuant to this Section 2.2(k) in accordance with the provisions of the Cash Management Agreements shall (i) be subject to the limitations as to aggregate amount set forth in Section 2.2(a), (ii) not be subject to the limitations as to number or individual amount set forth in Sections 2.2(h) and (i), (iii) be payable by such the Borrower, both as to principal and interest, at the times set forth in the Cash Management Agreements (but in no event later than the Termination Date), (iv) not be made at any time after the Swing Line Lender Bank has notice of the occurrence of a Default or Event of Default, (v) if not repaid by the Borrower in connection therewithaccordance with the provisions of the Cash Management Agreements, be subject to each Bank’s obligation to purchase participating interests therein pursuant to Section 2.2(f), and (vi) except as provided in the foregoing subsections (i) through (v), be subject to all of the terms and conditions of this Section 2.2.
Appears in 1 contract
Sources: Credit Agreement (Aqua America Inc)
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a "Swing Line Loan" and, collectively, the "Swing Line Loans") to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Lenders agree Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Sections 5 and 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the "Swing Line Maturity Date") being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) Swing Line Loans shall be evidenced by a promissory note of the Borrower, substantially in the form of Exhibit B-3 (as indorsed or modified from time to time, the "Swing Line Note"), payable to the order of the Swing Line Lender, dated the first Borrowing Date, and in the maximum stated principal amount equal to the Swing Line Commitment and evidencing the obligation of the Borrower to pay the amount of the Swing Line Commitment or, if less, the aggregate unpaid principal balance of the Swing Line Loans made by the Swing Line Lender which shall not have been funded by a Mandatory Borrowing, together with interest thereon as provided herein.
(c) On any Business Day on which a Swing Line Loan shall be due and payable and shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Sections 9.1(h) or (i)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), shall be made by all Lenders pro rata based on each such Lender's Commitment Percentage on the Swing Line Lender will promptly request Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line LoansLoan. The Lenders are Each Lender irrevocably directed by each Relevant Borrower agrees to make any Advance by way of Prime Rate a Revolving Credit Loan or Base Rate Loan (as applicable) if so requested pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by notwithstanding: (i) whether the amount of such reduction Mandatory Borrowing complies with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6 is then unsatisfied, (iii) whether a Default or an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions amount of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in Commitments at such time.
(d) Upon each receipt by a further Swing Line Loan Lender of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will again promptly request a participation in the Agent on behalf of the Relevant Borrower (and for this purpose the outstanding Swing Line Lender is irrevocably authorized by Loans (including accrued interest thereon) in an amount equal to the Relevant Borrower to do so) for an Advance by way product of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan its Commitment Percentage and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account outstanding balance of the Swing Line Loans (each, a "Swing Line Participation Amount"). Each Lender such Lender's Rateable Portion shall also be liable for an amount equal to the product of each Advance requested its Commitment Percentage and any amounts paid by the Swing Line Lender on behalf of the Relevant Borrower pursuant to repay Swing Line Loans made by such Swing Line Lender.
13.26.2this Section that are subsequently rescinded or avoided, or must otherwise be restored or returned. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and Such liabilities shall be performed in accordance with the terms unconditional and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred without regard to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights compliance by the Agent Borrower with any of its obligations under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant BorrowerLoan Documents.
13.26.3. If (e) In furtherance of Section 2.2(d), upon each receipt by a Lender (a "Defaulting Lender") fails of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, such Lender shall promptly make payment on available to the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred immediately preceding sentence to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment promptly upon receipt thereof in like funds as received. Each Lender hereby indemnifies and agrees to hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of that such Lender to pay, or from any delay in paying the Administrative Agent any amount such Lender is required by notice from the Administrative Agent to pay in accordance with this Section upon receipt of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5 (plus except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall pay interest as provided below) in full (and without in any way limiting to the rights Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in respect full, on the unpaid portion thereof, at a rate of interest per annum, whether before or after judgment, equal to (i) from the date such failure):
13.26.3.1. amount was due until the third day therefrom, the Federal Funds Effective Rate, and (ii) thereafter, the Federal Funds Effective Rate plus 2%, payable upon demand by the Swing Line Lender Lender. The Administrative Agent shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear distribute such interest payable by the Defaulting Lender payments to the Swing Line Lender at upon receipt thereof in like funds as received.
(f) Whenever the rate payable Administrative Agent is reimbursed by the Relevant Borrower in respect for the account of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in immediately available funds pursuant to this Section, the purchase price for Administrative Agent will promptly remit such payment to such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS Corp)
Swing Line Loans. 13.26.1The Swing Line. Unless Subject to the terms and conditions set forth herein, Bank of America in its capacity as Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in its sole discretion, make loans to the Borrower (each such loan, a “Swing Line Loan”) from time to time on any Business Day (other than the Closing Date) until the Maturity Date for the Revolving Credit Facility in an aggregate amount not to exceed at any time the amount of the Swing Line Lender and Sublimit, notwithstanding the Majority Lenders agree otherwise, if an Event of Default occurs then the Swing Line Lender will promptly request the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the fact that such Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way , when aggregated with the Pro Rata Share of Prime Rate Loan or Base Rate Loan (the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by may exceed the amount of such reduction Swing Line Lender’s Revolving Credit Commitment; provided that, after giving effect to any Swing Line Loan, (i) the Revolving Credit Exposure shall not exceed the aggregate Revolving Credit Commitment and (ii) the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions aggregate Outstanding Amount of the Revolver Facility. If Revolving Credit Loans of any Standby Instrument is thereafter drawn upon which results Lender (other than the relevant Swing Line Lender), plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment then in a effect; provided further that Borrower shall not use the proceeds of any Swing Line Loan the to refinance any outstanding Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Loan; provided, further, that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled under no obligation to receive make Swing Line Loans at any payment which the time if any Lender is at such time a Defaulting Lender hereunder, unless such Defaulting Lender’s participation in the Swing Line Loan would otherwise have been entitled be reallocated, in full, to receive Non-Defaulting Lenders in respect accordance with Section 2.17(a). Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of the a Swing Line Loan, each Revolving Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount Lender shall bear interest payable by the Defaulting Lender to be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender at the rate payable by the Relevant Borrower a risk participation in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification Loan in an amount equal to the product of such fact from Lender’s Pro Rata Share times the Agent, each Lender shall deliver to the Agent for the account amount of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line ObligationsLoan.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless Swing Line Lender hereby agrees, subject to the limitations set forth below with respect to the maximum amount of Swing Line Loans permitted to be outstanding from time to time, to make a portion of the Revolving Loan Commitments available to Borrower from time to time during the period from the Closing Date to but excluding the Revolving Loan Commitment Termination Date by making Swing Line Loans to Borrower in an aggregate amount not exceeding the amount of the Swing Line Lender Loan Commitment to be used for the purposes identified in subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share of the Majority Lenders agree otherwiseLetter of Credit Usage then in effect, if an Event may exceed Swing Line Lender's Revolving Loan Commitment. The original amount of Default occurs then the Swing Line Lender will promptly request Loan Commitment is $5,000,000; provided that any reduction of the Agent on behalf Revolving Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount less than the then current amount of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower Loan Commitment shall result in an automatic corresponding reduction of the Swing Line Loan Commitment to do so) for an Advance by way the amount of Prime Rate the Revolving Loan Commitments, as so reduced, without any further action on the part of Borrower, Administrative Agent or Base Rate Swing Line Lender. The Swing Line Loan (as applicable) from Commitment shall expire on the Lenders pursuant to Section 2.4 to repay Revolving Loan Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans shall be paid in full no later than that date; provided that the Swing Line Loan Commitment shall expire immediately and without further action on May 15, 2001 if the Term Loans are not made on or before that date. Amounts borrowed under this subsection 2.1A(ii) may be repaid and reborrowed to but excluding the Revolving Loan Commitment Termination Date. Anything contained in this Agreement to the contrary notwithstanding, the Swing Line Loans and the Swing Line Loan Commitment shall be subject to the limitation that in no event shall the Total Utilization of Revolving Loan Commitments at any time exceed the lesser of the Revolving Loan Commitments then in effect and the Borrowing Base then in effect. With respect to any Swing Line Loans that have not been voluntarily prepaid by Borrower pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 12:00 Noon (New York City time) at least one Business Day in advance of the proposed Funding Date, a notice (which shall be deemed to be a Notice of Borrowing given by Borrower) requesting Lenders to make Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given. Borrower hereby authorizes the giving of any such notice and the making of any such Revolving Loans. Anything contained in this Agreement to the contrary notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender's outstanding Revolving Loans and shall be due under the Revolving Note of Swing Line Lender. Borrower agrees to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower If any portion of any such amount paid (or deemed to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicablebe paid) if so requested by the to Swing Line Lender and pay the proceeds thereof directly to the should be recovered by or on behalf of Borrower from Swing Line Lender. At all times thereafter Lender in bankruptcy, by assignment for the Swing Line Commitment benefit of creditors or otherwise, the loss of the amount so recovered shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the ratably shared among all Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facilitysubsection 10.5. If for any Standby Instrument is thereafter drawn reason (a) Revolving Loans are not made upon which results in a further Swing Line Loan the request of Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject immediately preceding paragraph in an amount sufficient to repay any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred amounts owed to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are terminated at a time when any Swing Line Loans are outstanding, each Lender shall be deemed to, and hereby agrees to, have purchased an assignment of such failure):
13.26.3.1outstanding Swing Line Loans in an amount equal to its Pro Rata Share (calculated, in the case of the foregoing clause (b), immediately prior to such termination of the Revolving Loan Commitments) of the unpaid amount of such Swing Line Loans together with accrued interest thereon. Upon one Business Day's notice from Swing Line Lender, each Lender shall deliver to Swing Line Lender an amount equal to its respective assignment in same day funds at the Administrative Agent's Office. In order to further evidence such assignment (and without prejudice to the effectiveness of the assignment provisions set forth above), each Lender agrees to enter into an Assignment Agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to the Swing Line Lender and such Lender. If any Lender fails to make available to Swing Line Lender the amount of such Lender's assignment as provided in this paragraph, Swing Line Lender shall be entitled to receive any payment which recover such amount on demand from such Lender together with interest thereon at the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable rate customarily used by the Defaulting Lender to the Swing Line Lender for the correction of errors among banks for three Business Days and thereafter at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4Base Rate. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of receives a payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (amount in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest assignments as provided in this paragraph, Swing Line Lender shall promptly distribute to each such other Lender its Pro Rata Share of such payment. Anything contained herein to the contrary notwithstanding, each Lender's obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to Subsection 13.26.4, or the second preceding paragraph and each Lender's obligation to purchase an assignment of any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (a) any set-off, counterclaim, recoupment, defense or other amount from the Relevant right which such Lender may have against Swing Line Lender, Borrower or any other Person in respect for any reason whatsoever; (b) the occurrence or continuation of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share an Event of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors Default or a preferential payment under Potential Event of Default; (c) any applicable insolvency legislation adverse change in the business, operations, properties, assets, condition (financial or is otherwise required otherwise) or prospects of Borrower or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan Document by any party thereto; or (e) any other circumstance, happening or event whatsoever, whether or not similar to be returned, any of the foregoing; provided that such obligations of each Lender shall promptly return are subject to such the condition that (x) Swing Line Lender any portion thereof previously transferred believed in good faith that all conditions under Section 4 to it by such the making of the applicable Refunded Swing Line Lender, without interest to the extent that interest is not payable by such Loans or other unpaid Swing Line Lender Loans, as the case may be, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (y) the satisfaction of any such condition not satisfied had been waived in connection therewithaccordance with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made.
Appears in 1 contract
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans (each a "SWING LINE Loan" and, collectively, the "SWING LINE LOANS") to the Parent Borrower in Dollars from time to time during the Swing Line Commitment Period in an aggregate principal amount at any one time outstanding not to exceed the Swing Line Commitment Amount, PROVIDED, HOWEVER, that, immediately after making each Swing Line Loan, (i) the aggregate unpaid balance of the Swing Line Loans would not exceed the Swing Line Commitment Amount and (ii) the Aggregate Credit Exposure would not exceed the Aggregate Revolving Credit Commitment Amount. Unless During the Swing Line Commitment Period, the Parent Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Commitment, all in accordance with the terms and conditions of this Agreement. No Swing Line Loan shall be made prior to the making of the first Revolving Credit Loans on the first Borrowing Date.
(b) The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement unless arrangements to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loan shall have been made for the benefit of the Swing Line Lender and such arrangements are in all respects satisfactory to the Swing Line Lender. The Swing Line Lender will not make any Swing Line Loan if the Administrative Agent or any Lender, by notice to the Swing Line Lender and the Majority Lenders agree otherwiseParent Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, if shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Swing Line Loan. Each Swing Line Loan shall be due and payable on the earlier to occur of the last day of the Swing Line Interest Period applicable thereto and the Swing Line Maturity Date.
(c) Upon each receipt by a Lender of notice of an Event of Default occurs then from the Administrative Agent pursuant to Section 10.5, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender will promptly request a participation in the Agent on behalf outstanding Swing Line Loans (including accrued interest thereon) in an amount (the "SWING LINE PARTICIPATION AMOUNT") equal to the product of each Relevant Borrower (its Commitment Percentage and for this purpose the aggregate outstanding principal amount of the Swing Line Loans plus all accrued and unpaid interest thereon. Each Lender is irrevocably authorized by each Relevant Borrower to do so) shall also be liable for an Advance amount equal to the product of its Commitment Percentage and any amounts paid by way any Credit Party pursuant to this Section that are subsequently rescinded or avoided, or must be otherwise restored or returned. Such liabilities shall be absolute and unconditional and without regard to the occurrence of Prime Rate any Default or the compliance by and Credit Party with any of its obligations under the Loan or Base Rate Loan Documents.
(as applicabled) In furtherance of Section 2.2(c), upon each receipt by a Lender of notice of an Event of Default from the Lenders Administrative Agent pursuant to Section 2.4 to repay 10.5, such Lender shall promptly make available its Swing Line Participation Amount to the Swing Line Lender the Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Administrative Agent for the account of the Swing Line Lender such Lender's Rateable Portion of at the applicable Agent Payment Office, in Dollars, and in immediately available funds. The Administrative Agent shall deliver the payments made by each Advance requested by Lender pursuant to the immediately preceding sentence to the Swing Line Lender on behalf of promptly upon receipt thereof in like funds as received. Each Lender shall indemnify and hold harmless the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever Administrative Agent and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of such Lender to pay, or from any delay in paying the Administrative Agent any amount such Lender is required to pay in accordance with this Section 2.2 (except in respect of losses, liabilities, actions, suits, judgments, demands, costs and expenses suffered by the Administrative Agent or the Issuing Bank against Swing Line Lender, as the Relevant Borrower.
13.26.3. If a case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender (a "Defaulting Lender") fails shall be required to make payment on pay interest to the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances amount was due until paid in full, on the date of delivery of such funds to such Swing Line Lender by such Lender unpaid portion thereof, at a rate of interest per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made payable upon demand by the Lenders in the event and Swing Line Lender. The Administrative Agent shall distribute such interest payments to the extent such Swing Line Lender has not been reimbursed upon receipt thereof in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligationslike funds as received.
13.26.5. The Swing Line Lender shall(e) Whenever the Administrative Agent is reimbursed by any Credit Party, forthwith upon its receipt for the account of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in connection therewithpursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Swing Line Loans. 13.26.1(a) The Swing Line. Unless Subject to the terms and conditions set forth herein, each Swing Line Lender and agrees (severally, not jointly), in reliance upon the Majority agreements of the other Lenders agree otherwiseset forth in this Section 2.4, if an Event of Default occurs then the to make loans (each such loan, a “Swing Line Lender will promptly request the Agent Loan”) to Borrower from time to time on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay any Business Day prior to the Swing Line Lender Termination Date, notwithstanding the fact that such Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way , when aggregated with the Commitment Percentage of Prime Rate Loan or Base Rate Loan (the Outstanding Amount of Revolver Loans and L/C Exposure of such Lender acting as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by may exceed the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required Lender’s Commitment; provided, however, that after giving effect to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan Loan, (i) the Swing Line Lender will again promptly request the Agent on behalf aggregate Outstanding Amount of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay all Swing Line Loans made by such the Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, Lenders shall not be exceed the Swing Line Sublimit, (ii) the Commitment Usage shall not exceed the Total Commitment, and (iii) the aggregate Outstanding Amount of the Revolver Loans of any Lender, plus such Lender’s Commitment Percentage of the Outstanding Amount of all L/C Exposure, plus such Lender’s Commitment Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and provided, further, that Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to any qualification or exception whatsoever and shall be performed in accordance with the other terms and conditions of hereof, Borrower may borrow under this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations Section 2.4, prepay under Section 2.6 or Article Six;
13.26.2.23.2, and reborrow under this Section 2.4. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Each Swing Line Lender or Loan shall be a Daily Floating LIBOR Loan. Immediately upon the Issuing Bank against the Relevant Borrower.
13.26.3. If making of a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the AgentLoan, each Lender shall deliver be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the Agent for product of such Lender’s Commitment Percentage times the account amount of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line ObligationsLoan.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Swing Line Loans. 13.26.1(a) Subject to the terms and conditions hereof, the Swing Line Lender agrees to make loans under this Agreement (each a “Swing Line Loan” and, collectively, the “Swing Line Loans”) to the Borrower from time to time during the Swing Line Commitment Period. Unless Swing Line Loans (i) may be repaid and reborrowed in accordance with the provisions hereof, (ii) shall not, immediately after giving effect thereto, result in the Aggregate Credit Exposure exceeding the Aggregate Commitment Amount, and (iii) shall not, immediately after giving effect thereto, result in the aggregate outstanding principal balance of all Swing Line Loans exceeding the Swing Line Commitment. The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender is a Defaulting Lender unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender’s participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent, or any Lender by notice to the Swing Line Lender and the Majority Borrower no later than one Domestic Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 5 and/or Section 6, as applicable, have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Loan. Each Swing Line Loan shall be due and payable on the day (the “Swing Line Maturity Date”) being the earliest of the last day of the Swing Line Interest Period applicable thereto, the date on which the Swing Line Commitment shall have been terminated in accordance with Section 2.6, and the date on which the Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise. Each Swing Line Loan shall bear interest at the Negotiated Rate applicable thereto. The Swing Line Lender shall disburse the proceeds of Swing Line Loans at its office designated in Section 11.2 by crediting such proceeds to an account of the Borrower maintained with the Swing Line Lender.
(b) On any Domestic Business Day, the Swing Line Lender may, in its sole discretion, give notice to the Lenders agree otherwise, if and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default occurs then under Section 9.1(h), (i) or (j)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a “Mandatory Borrowing”), shall be made by all Lenders pro rata based on each such Lender’s Commitment Percentage on the Swing Line Lender will promptly request Domestic Business Day immediately succeeding the Agent on behalf giving of such notice. The proceeds of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay Mandatory Borrowing shall be remitted directly to the Swing Line Lender the to repay such outstanding Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter the Swing Line Commitment shall be treated as reduced to nil, the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further AdvanceLoan. Each Lender unconditionally agrees to pay to the Agent for the account of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by the Swing Line Lender on behalf of the Relevant Borrower to repay Swing Line Loans made by such Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1. any lack of validity or enforceability of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails to make payment on the due date therefor of any amount due from it for the account of the Swing Line Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Swing Line Lender in respect of such failure):
13.26.3.1. the Swing Line Lender shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable by the Defaulting Lender to the Swing Line Lender at the rate payable by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.
Appears in 1 contract
Sources: Credit Agreement (CVS Caremark Corp)
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions hereof, the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the agrees to make swing line loans (each a “Swing Line Lender will promptly request Loan” and, collectively, the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the “Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable”) if so requested by the Swing Line Lender and pay the proceeds thereof directly to the Swing Line Lender. At all times thereafter Parent Borrower in Dollars from time to time during the Swing Line Commitment shall be treated as reduced Period in an aggregate principal amount at any one time outstanding not to nil, exceed the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Amount, provided, however, that, immediately after making each Swing Line Loan Loan, (i) the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account aggregate unpaid balance of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by Loans would not exceed the Swing Line Lender on behalf of Commitment Amount and (ii) the Relevant Borrower to repay Aggregate Revolving Credit Exposure would not exceed the Aggregate Revolving Credit Commitment Amount. During the Swing Line Loans made by such Commitment Period, the Parent Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4Commitment, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed all in accordance with the terms and conditions of this Agreement under all circumstances including:
13.26.2.1Agreement. any lack of validity or enforceability No Swing Line Loan shall be made prior to the making of the Relevant Borrower's first Revolving Credit Loans on the first Borrowing Date.
(b) The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under Section 2.6 or Article Six;
13.26.2.2. any of the matters referred this Agreement unless arrangements to in Section 6.2 or 6.3;
13.26.2.3. the occurrence of any Default or Event of Default or the exercise of any rights by the Agent under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by eliminate the Swing Line Lender or the Issuing Bank against the Relevant Borrower.
13.26.3. If a Lender (a "Defaulting Lender") fails ’s risk with respect to make payment on the due date therefor of any amount due from it such defaulting Lender’s participation in such Swing Line Loan shall have been made for the account benefit of the Swing Line Lender pursuant and such arrangements are in all respects satisfactory to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment of that amount (plus interest as provided below) in full (and without in any way limiting the rights of the Lender. The Swing Line Lender in respect of such failure):
13.26.3.1. the will not make any Swing Line Lender shall be entitled to receive Loan if the Administrative Agent or any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear interest payable Lender, by the Defaulting Lender notice to the Swing Line Lender at and the rate payable by Parent Borrower no later than one Business Day prior to the Relevant Borrower Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in respect Section 6 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making such Swing Line Loan. Each Swing Line Loan Obligations which gave rise shall be due and payable on the earlier to such overdue amountoccur of the last day of the Swing Line Interest Period applicable thereto and the Swing Line Maturity Date.
13.26.4. If for any reason (c) Upon each receipt by a Lender of notice of an Advance may not be made Event of Default from the Administrative Agent pursuant to Subsection 13.26.1 to reimburse Section 10.5, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender as contemplated thereby, then promptly upon receipt of notification of such fact from a participation in the Agent, each Lender shall deliver outstanding Swing Line Loans (including accrued interest thereon) in an amount (the “Swing Line Participation Amount”) equal to the Agent for product of its Revolving Credit Commitment Percentage and the account aggregate outstanding principal amount of such the Swing Line Lender in immediately available funds the purchase price for such Lender's participation Loans plus all accrued and unpaid interest in the relevant unreimbursed Swing Line Advancesthereon. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent shall also be liable for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum an amount equal to the Federal Funds Rate (in the case reimbursement is product of its Revolving Credit Commitment Percentage and any amounts paid by any Credit Party pursuant to this Section that are subsequently rescinded or avoided, or must be made in U.S. Dollars) otherwise restored or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such periodreturned. Such payment liabilities shall only, however, be made by the Lenders in the event absolute and unconditional and without regard to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such Swing Line Lender in connection therewith.the
Appears in 1 contract
Swing Line Loans. 13.26.1. Unless (a) Subject to the terms and conditions of this Agreement, the Swing Line Lender and the Majority Lenders agree otherwise, if an Event of Default occurs then the agrees to make swing line loans (each a "Swing Line Lender will promptly request Loan" and, collectively, the Agent on behalf of each Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by each Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay to the Swing Line Lender the "Swing Line Loans. The Lenders are irrevocably directed by each Relevant Borrower to make any Advance by way of Prime Rate Loan or Base Rate Loan (as applicable") if so requested by the Swing Line Lender and pay the proceeds thereof directly in Dollars to the Swing Line Lender. At all times thereafter Borrower from time to time during the Swing Line Commitment shall be treated as reduced to nilPeriod, provided that immediately after giving effect thereto, (i) the Swing Line Lender's Revolver Commitment shall be increased by the amount of such reduction and the Lenders shall make such adjusting payments amongst them in the manner contemplated by Section 13.22.2 as may be required to ensure their respective participations in outstanding Advances under the Revolver Facility reflect their respective Rateable Portions of the Revolver Facility. If any Standby Instrument is thereafter drawn upon which results in a further Swing Line Loan the Swing Line Lender will again promptly request the Agent on behalf of the Relevant Borrower (and for this purpose the Swing Line Lender is irrevocably authorized by the Relevant Borrower to do so) for an Advance by way of Prime Rate Loan or Base Rate Loan (as applicable) from the Lenders pursuant to Section 2.4 to repay that Swing Line Loan and the foregoing provisions of this Subsection 13.26.1 shall equally apply to each such further Advance. Each Lender unconditionally agrees to pay to the Agent for the account aggregate unpaid balance of the Swing Line Lender such Lender's Rateable Portion of each Advance requested by Loans shall not exceed the Swing Line Lender on behalf Commitment Amount, and (ii) the Aggregate Credit Exposure of all Lenders shall not exceed the Relevant Borrower to repay Aggregate Revolving Credit Commitment Amount. During the Swing Line Loans made by such Commitment Period, the Borrower may borrow, prepay in whole or in part and reborrow under the Swing Line Lender.
13.26.2. Except as provided in Subsection 13.26.4Commitment, the obligations of each Lender under Subsection 13.26.1 are unconditional, shall not be subject to any qualification or exception whatsoever and shall be performed all in accordance with the terms and conditions of this Agreement.
(b) The Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Lender shall be in default of its obligations under this Agreement under all circumstances including:
13.26.2.1unless the Swing Line Lender has entered into arrangements satisfactory to it and the Borrower to eliminate the Swing Line Lender's risk with respect to such defaulting Lender's participation in such Swing Line Loan. The Swing Line Lender will not make a Swing Line Loan if the Administrative Agent or any lack of validity or enforceability Lender, by notice to the Swing Line Lender and the Borrower no later than one Business Day prior to the Borrowing Date with respect to such Swing Line Loan, shall have determined that the conditions set forth in Section 6 have not been satisfied and such conditions remain unsatisfied as of the Relevant Borrower's obligations under Section 2.6 or Article Six;
13.26.2.2. any requested time of the matters referred making such Loan. Each Swing Line Loan shall be due and payable on the earliest to occur of the last day of the Interest Period applicable thereto, fifteen days prior to the Maturity Date, the date on which the Swing Line Commitment shall have been voluntarily terminated by the Borrower in accordance with Section 2.6, and the date on which the Swing Line Loans shall become due and payable pursuant to the provisions hereof, whether by acceleration or otherwise.
(c) On any Business Day on which a Swing Line Loan shall remain unpaid, the Swing Line Lender may, in its sole discretion, give notice to the Lenders and the Borrower that such outstanding Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Sections 9.1(g) or (h)), in which case a borrowing of Revolving Credit Loans made as ABR Advances (each such borrowing, a "Mandatory Borrowing"), shall be made by all Lenders pro rata based on each such Lender's Commitment Percentage on (i) such Business Day if such notice was given prior to 11:00 a.m. or (ii) the immediately succeeding Business Day if such notice was given after 11:00 a.m. The proceeds of each Mandatory Borrowing shall be remitted directly to the Swing Line Lender to repay such outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swing Line Lender notwithstanding: (i) the amount of such Mandatory Borrowing may not comply with the minimum amount for Loans otherwise required hereunder, (ii) whether any condition specified in Section 6.2 6 is then unsatisfied, (iii) whether a Default or 6.3;an Event of Default then exists, (iv) the Borrowing Date of such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then outstanding, (vi) the Aggregate Credit Exposure at such time and (vii) the Aggregate Revolving Credit Commitment Amount at such time.
13.26.2.3(d) Upon each receipt by a Lender of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, such Lender shall purchase unconditionally, irrevocably, and severally (and not jointly) from the Swing Line Lender a participation in the outstanding Swing Line Loans (including accrued interest thereon) in an amount equal to the product of its Commitment Percentage and the outstanding amount of the Swing Line Loans plus all accrued and unpaid interest thereon (the "Swing Line Participation Amount"). Each Lender shall also be liable for an amount equal to the product of its Commitment Percentage and any amounts paid by the Borrower pursuant to this Section 2.3 that are subsequently rescinded or avoided, or must otherwise be restored or returned. Such liabilities shall be absolute and unconditional and without regard to the occurrence of any Default or Event of Default or the exercise of any rights compliance by the Agent Borrower with any of its obligations under Section 13.2; and
13.26.2.4. the absence of any demand for payment being made, any proof of claim being filed, any Security being enforced, any proceeding being commenced or any judgment being obtained by the Swing Line Lender or the Issuing Bank against the Relevant BorrowerLoan Documents.
13.26.3. If (e) In furtherance of subsection (d) above, upon each receipt by a Lender (a "Defaulting Lender") fails of notice of an Event of Default from the Administrative Agent pursuant to Section 10.5, such Lender shall promptly make payment on available to the due date therefor of any amount due from it Administrative Agent for the account of the Swing Line Lender its Swing Line Participation Amount at the office of the Administrative Agent specified in Section 11.2, in lawful money of the United States and in immediately available funds. The Administrative Agent shall deliver the payments made by each Lender pursuant to Subsection 13.26.1 (the balance thereof for the time being unpaid being referred immediately preceding sentence to in this Subsection 13.26.3 as an "overdue amount") then until the Swing Line Lender has received payment promptly upon receipt thereof in like funds as received. Each Lender shall indemnify and hold harmless the Administrative Agent and the Swing Line Lender from and against any and all losses, liabilities (including liabilities for penalties), actions, suits, judgments, demands, costs and expenses resulting from any failure on the part of that such Lender to pay, or from any delay in paying the Administrative Agent any amount such Lender is required to pay in accordance with this Section 2.3 (plus except in respect of losses, liabilities or other obligations suffered by the Administrative Agent or the Swing Line Lender, as the case may be, resulting from the gross negligence or willful misconduct of the Administrative Agent or the Swing Line Lender, as the case may be), and such Lender shall be required to pay interest as provided below) in full (and without in any way limiting to the rights Administrative Agent for the account of the Swing Line Lender from the date such amount was due until paid in respect full, on the unpaid portion thereof, at a rate of interest per annum equal to (i) from the date such failure):
13.26.3.1. amount was due until the third day therefrom, the Federal Funds Rate, and (ii) thereafter, the Federal Funds Rate plus 2%, payable upon demand by the Swing Line Lender Lender. The Administrative Agent shall be entitled to receive any payment which the Defaulting Lender would otherwise have been entitled to receive in respect of the Credit Facilities or otherwise in respect of any Loan Document; and
13.26.3.2. the overdue amount shall bear distribute such interest payable by the Defaulting Lender payments to the Swing Line Lender at upon receipt thereof in like funds as received.
(f) Whenever the rate payable Administrative Agent is reimbursed by the Relevant Borrower in respect of the Loan Obligations which gave rise to such overdue amount.
13.26.4. If for any reason an Advance may not be made pursuant to Subsection 13.26.1 to reimburse the Swing Line Lender as contemplated therebyBorrower, then promptly upon receipt of notification of such fact from the Agent, each Lender shall deliver to the Agent for the account of such Swing Line Lender in immediately available funds the purchase price for such Lender's participation interest in the relevant unreimbursed Swing Line Advances. Each Lender shall, upon demand by such Swing Line Lender made to the Agent, deliver to the Agent for the account of such Swing Line Lender interest on such Lender's Rateable Share from the date of payment by such Swing Line Lender of such unreimbursed Swing Line Advances until the date of delivery of such funds to such Swing Line Lender by such Lender at a rate per annum equal to the Federal Funds Rate (in the case reimbursement is to be made in U.S. Dollars) or the one month CDOR BA Rate (in the case the reimbursement is to be made in Canadian Dollars) for such period. Such payment shall only, however, be made by the Lenders in the event and to the extent such Swing Line Lender has not been reimbursed in full by the Relevant Borrower for interest on the amount of such unreimbursed Swing Line Obligations.
13.26.5. The Swing Line Lender shall, forthwith upon its receipt of any reimbursement (in whole or in part) by the Relevant Borrower for any unreimbursed Swing Line Advances in relation to which other Lenders have purchased a participation interest pursuant to Subsection 13.26.4, or of any other amount from the Relevant Borrower or any other Person in respect of such payment (other than pursuant to Section 2.6 or 6.2), transfer to such other Lender such other Lender's Rateable Share of such reimbursement or other amount. In the event that any receipt by the Issuing Bank of any reimbursement or other amount is found to have been a transfer in fraud of creditors or a preferential payment under any applicable insolvency legislation or is otherwise required to be returned, such Lender shall promptly return to such Swing Line Lender any portion thereof previously transferred to it by such Swing Line Lender, without interest to the extent that interest is not payable by such for any payment in connection with Swing Line Loans and such payment relates to an amount previously paid by a Lender in connection therewithpursuant to this Section, the Administrative Agent will promptly pay over such payment to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Building Materials Investment Corp)