Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. (c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Sources: Credit Agreement (Magellan Midstream Partners Lp), Credit Agreement (Magellan Midstream Partners Lp)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the Swingline Lender agrees may, in its sole discretion, make loans for the Swingline Lender’s own account (each a “Swingline Loan”) to make Swingline Loans the extent the same would otherwise have been available to the Borrower from time to time during under the Availability Period, Total Revolving Credit Commitment in an aggregate principal amount at any one time outstanding up to, but not exceeding, $15,000,000; provided, however, that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by at no time shall the Swingline Lender exceeding make any Swingline Loan to the extent that, after giving effect to such Swingline Lender’s Swingline Commitment or (ii) Loan, the Swingline aggregate amount of each Lender’s Revolving Credit Exposure exceeding its at such time would exceed the Availability or the amount of any Lender’s Revolving Credit Exposure at such time would exceed such Lender’s Revolving Credit Commitment; and provided further, however, that the Swingline Lender shall not be required to not, without the consent of the Required Lenders, make a any Swingline Loan if any Event of Default exists of which the Swingline Lender has actual knowledge. Each Swingline Loan shall be an Alternate Base Rate Borrowing and shall in any event mature no later than the Revolving Credit Termination Date. Subject to refinance the conditions herein and within the limits set forth in the first sentence of this paragraph, any Swingline Loan prepaid prior to the Revolving Credit Termination Date may be reborrowed as an outstanding additional Swingline Loan. Within Loan by the foregoing limits and subject Borrower pursuant to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loansof this Agreement.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon, New York City time1:00 p.m., on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The , and subject to the terms of this Agreement, the Swingline Lender shall may make each a Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, 5:00 p.m. on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later demand at any time (but in no event shall such demand be made less frequently than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to once per each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each calendar month) that each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, in the manner provided below, such Lender’s Applicable Revolving Credit Commitment Percentage of all or a portion of the outstanding Swingline Loans, which demand shall be made through the Agent, shall be in writing and shall specify the outstanding principal amount of Swingline Loans demanded to be paid. The Agent shall forward notice of each such demand to each Lender on the day such demand is received by the Agent (except that any such notice or demand received by the Agent after 1:00 p.m. on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be forwarded to the Lenders by the Agent until the next succeeding Business Day), together with a statement prepared by the Agent specifying the amount of each Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of the Swingline Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Sections 4.1 or 4.2 shall have been satisfied (which conditions precedent, for the purposes of payment of Swingline Loans only, the Lenders hereby irrevocably waive), each Lender shall, before 10:00 a.m. on the Business Day next succeeding the date of such Lender’s receipt of such notice, make available to the Agent, in immediately available funds, for the account of the Swingline Lender, the amount specified in such statement, provided that such amount shall not cause such Lender’s Revolving Credit Exposure to exceed such Lender’s Revolving Credit Commitment. Upon such payment by a Lender, such Lender shall, except as provided in Section 2.11(d) below, be deemed to have made a Revolving Loan to the Borrower in the amount of such payment. The Borrower agrees that all such Revolving Loans so deemed made shall be deemed to have been requested by it and directs that all proceeds thereof shall be used to repay the Swingline Loans to the Swingline Lender, and the Agent shall use such funds received from the Lenders to repay the Swingline Loans to the Swingline Lender. To the extent that any Lender fails to make such payment available to the Agent for the account of the Swingline Lender, the Borrower shall repay such Swingline Loan on demand.
(d) Upon the occurrence of any Event of Default described in Sections 8.1(o) through 8.1(r), each Lender shall acquire, without recourse or warranty, an undivided participation in each Swingline Loan otherwise required to be repaid by such Lender pursuant to Section 2.11(c) above, which participation shall be in a principal amount equal to such Lender’s Revolving Credit Commitment Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected Loan, by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay paying to the Swingline Lender on the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant date on which such Lender would otherwise have been required to this paragraph, and thereafter payments make a payment in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and Section 2.11(c) above, in immediately available funds, an amount equal to the Swingline such Lender, as their interests may appear; provided that any ’s Revolving Credit Commitment Percentage of such payment so remitted shall be repaid Swing Loan. If all or part of such amount is not in fact made available by such Lender to the Swingline Lender or on such date, the Swingline Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at the Administrative Agent, as applicable, if and to Federal Funds Rate for the extent first Business Day after such payment was due and thereafter at the rate of interest then applicable to Alternate Base Rate Borrowings.
(e) From and after the date on which any Lender (i) is required deemed to be refunded have made a Revolving Loan pursuant to the Borrower for Section 2.11(c) above with respect to any reason. The purchase of participations Swingline Loan or (ii) purchases an undivided participation interest in a Swingline Loan pursuant to this paragraph Section 2.11(d) above, the Swingline Lender shall not relieve promptly distribute to such Lender such Lender’s Revolving Credit Commitment Percentage of all payments of principal of and interest received by the Borrower Swingline Lender on account of any default in the payment thereofsuch Swingline Loan other than those received from a Lender pursuant to Sections 2.11(c) or (d) above.
Appears in 2 contracts
Sources: Credit Agreement (Animal Health International, Inc.), Credit Agreement (Animal Health International, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinof this Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, Commitment Period in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit, notwithstanding the fact that will not result in such Swingline Loans, when aggregated with the Applicable Percentage of the outstanding amount of Loans and LC Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Revolving Credit Loan Commitment; provided, that after giving effect to any amount requested, (i) the aggregate principal amount of all outstanding Swingline Loans made by does not exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Aggregate Revolving Credit Loan Commitments, and (ii) the aggregate outstanding amount of the Loans of any Lender, plus such Lender’s Applicable Percentage of the outstanding amount of all LC Obligations, plus such Lender’s Applicable Percentage of the outstanding amount of all Swingline LenderLoans does not exceed such ▇▇▇▇▇▇’s Revolving Credit Exposure exceeding its Loan Commitment; provided further that the Swingline Lender shall will not be required to make a Swingline Loan from and after the date which is one (1) day after it has received irrevocable written notice from the Borrower or any Lender that one or more of the applicable conditions to refinance an outstanding Credit Extensions specified in Section 4.02 is not then satisfied until such conditions are satisfied or waived in accordance with the provisions of this Agreement (and the Swingline Lender shall be entitled to conclusively rely on any such notice and shall have no obligation to independently investigate the accuracy of such notice and shall have no liability to the Borrower in respect thereof if such notice proves to be inaccurate). Each Swingline Loan shall be a Base Rate Loan. Within the foregoing limits and The aggregate amount of Swingline Loans in any Borrowing shall not be subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loansa minimum amount or increment.
(b) To request Swingline Loans shall be refunded by the Lenders on demand by the Swingline Lender. Such refundings shall be made by each Lender in accordance with its Applicable Percentage and shall thereafter be reflected as Loans of the Lenders on the books and records of the Administrative Agent. Each Lender shall fund its Applicable Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but in no event later than 1:00 p.m. on the next succeeding Business Day after such demand is made. No Lender’s obligation to fund its Applicable Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Applicable Percentage of a Swingline Loan, the Borrower nor shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of any Lender’s Applicable Percentage be increased as a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender result of any such notice received from the Borrower. The Swingline failure of any other Lender shall make each Swingline Loan available to the Borrower by means fund its Applicable Percentage of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Borrower shall pay to the Swingline Lender may the amount of each Swingline Loan (unless such Swingline Loan is fully refunded by written notice given the Lenders pursuant to Section 2.02(b)): on the earliest to occur of (i) demand by the Swingline Lender and (ii) the Revolving Credit Loan Maturity Date. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their Applicable Percentages (unless the amounts so recovered by or on behalf of the Borrower pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Administrative Agent has received notice in the manner required pursuant to Section 10.02 and which such Event of Default has not later than 10:00 a.m.been waived by the Majority Lenders or the Lenders, New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. applicable).
(d) Each Lender acknowledges and agrees that its obligation to acquire participations in refund Swingline Loans pursuant to in accordance with the terms of this paragraph Section 2.02 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination including, without limitation, non-satisfaction of the Commitmentsconditions set forth in Article IV. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.02, one of the events described in subsections (i)(i), (i)(ii) or (i)(iii) of Section 8.01 shall have occurred, each Lender will, on the date the applicable Revolving Credit Loan would have been made, purchase an undivided, irrevocable and unconditional participating interest in the Swingline Loans to be refunded in an amount equal to its Applicable Percentage of the aggregate amount of such payment shall be made without any offset, abatement, withholding or reduction whatsoeverSwingline Loans. Each Lender shall comply with its obligation under this paragraph by wire will immediately transfer of to the Swingline Lender, in immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations amount of the Lenders)its participation, and the Administrative Agent shall promptly pay to upon receipt thereof, the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the amounts so date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received by it from any Lender such ▇▇▇▇▇▇’s participating interest in a Swingline Loan, the LendersSwingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such ▇▇▇▇▇▇’s participating interest was outstanding and funded). The Administrative Agent Notwithstanding the foregoing provisions of this Section 2.02(d), a Lender shall notify the Borrower of any participations in any have no obligation to refund a Swingline Loan acquired pursuant to this paragraphSection 2.02(b) if (i) a Default shall exist at the time such refunding is requested by the Swingline Lender, (ii) such Default had occurred and thereafter payments was continuing at the time such Swingline Loan was made by the Swingline Lender and (iii) such Lender notified the Swingline Lender in respect writing, not less than one Business Day prior to the making by the Swingline Lender of such Swingline Loan shall be Loan, that such Default has occurred and is continuing and that such Lender will not refund Swingline Loans made while such Default is continuing.
(e) In order to facilitate the borrowing of Swingline Loans, the Borrower and the Swingline Lender may mutually agree to, and are hereby authorized to, enter into an Autoborrow Agreement in form and substance satisfactory to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from (including that certain Autoborrow Agreement dated July 27, 2018) (the Borrower (or other party on behalf of “Autoborrow Agreement”) providing for the Borrower) in respect of a Swingline Loan after receipt automatic advance by the Swingline Lender of Swingline Loans under the proceeds of a sale of participations therein conditions set forth in such agreement. At any time an Autoborrow Agreement is in effect, the requirements for Swingline Loans set forth in the immediately preceding paragraph shall not apply, and all Swingline Loans shall be promptly remitted to made in accordance with the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appearAutoborrow Agreement; provided that any such payment so remitted shall be repaid to automatic advance made by the Swingline Lender or in reliance of the Autoborrow Agreement shall be deemed a Swingline Loan as of the time such automatic advance is made notwithstanding any provision in the Autoborrow Agreement to the Administrative Agentcontrary. For purposes of determining the Revolving Credit Facility Usage under the Aggregate Revolving Credit Loan Commitments at any time during which an Autoborrow Agreement is in effect, as applicable, if and to the extent such payment is required Revolving Credit Facility Usage of all Swingline Loans shall be deemed to be refunded to the Borrower for amount of the Swingline Sublimit. For purposes of any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Autoborrow Agreement, all references to Bank of any default America in the payment thereofAutoborrow Agreement shall be deemed to be a reference to Bank of America, in its capacity as Swingline Lender hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Sunoco LP), Credit Agreement (NuStar Energy L.P.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make Swingline Loans to the Borrower Borrowers from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Loan Sublimit or (ii) the Swingline Lender’s aggregate Revolving Credit Exposure exceeding its CommitmentExposures would exceed the total Revolving Commitments; provided provided, further, that the Swingline Lender shall not be required to make a any Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, Loan the applicable Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loanand shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 and (ii) the requested date (borrowing date, which shall be a Business Day) . Each such telephonic notice must be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a written Swingline Loan Notice, appropriately completed and signed by a Responsible Officer of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowingapplicable Borrower. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the applicable Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the applicable Borrower (which hereby irrevocably authorize the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on their behalf), that each Revolving Lender make a Base Rate Loan in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, . Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and such Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrowers or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default or an Event of Default (C) any other occurrence, event or condition, whether or not similar to any reduction or termination of the Commitmentsforegoing; provided, and however, that each Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment shall be made without any offseton account of such Swingline Loan, abatement, withholding or reduction whatsoever. Each the Swingline Lender shall comply with will distribute to such Revolving Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Revolving Lender shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the applicable Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent account of the Swingline Lender.
(f) The applicable Borrower(s) shall make all payments of principal and not interest in respect of the Swingline Loans directly to the Swingline Lender. Any amounts received by .
(g) If the Swingline Lender from the Borrower (or other party on behalf of the Borrower) maturity date shall have occurred in respect of any tranche of Revolving Commitments at a time when a tranche or tranches of Extended Revolving Commitments is or are in effect with a longer maturity date, then on the earliest occurring maturity date all then outstanding Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Lender or Loans as a result of the occurrence of such maturity date); provided, however, that if on the occurrence of such earliest maturity date (after giving effect to any repayments of Revolving Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.05(j)), there shall exist sufficient unutilized Extended Revolving Commitments so that the respective outstanding Swingline Loans could be incurred pursuant the Extended Revolving Commitments which will remain in effect after the occurrence of such maturity date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and same shall be deemed to have been incurred solely pursuant to the Administrative Agentrelevant Extended Revolving Commitments, as applicable, if and to the extent such payment is Swingline Loans shall not be so required to be refunded to the Borrower for any reason. The purchase of participations repaid in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereoffull on such earliest maturity date.
Appears in 2 contracts
Sources: Credit Agreement (Genpact LTD), Amendment No. 1 (Genpact LTD)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.05, to make loans (each such loan, a “Swingline Loans Loan”) to the Borrower Borrowers from time to time on any Business Day during the Availability Period, Period in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit, notwithstanding the fact that will not result in such Swingline Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Loans and L/C Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Commitment; provided, however, that after giving effect to any Swingline Loan, (i) the aggregate principal amount of outstanding Swingline Loans made by Total Outstandings shall not exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Maximum Revolving Credit and (ii) the Swingline aggregate Outstanding Amount of the Loans of any Lender at such time, plus such Lender’s Revolving Credit Exposure exceeding its 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 Swingline Loans at such time shall not exceed such Lender’s Commitment; , and provided further that the Swingline Lender Borrowers shall not be required to make a use the proceeds of any Swingline Loan to refinance an any outstanding Swingline Loan. Within the foregoing limits limits, and subject to the other terms and conditions set forth hereinhereof, the Borrower Borrowers may borrowborrow under this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05. Each Swingline Loans.
(b) To request Loan shall be a Base Rate Loan. Immediately upon the making of a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice each Lender shall be irrevocable deemed to, and shall specify the requested date (which shall be a Business Day) of the Swingline Loanhereby irrevocably and unconditionally agrees to, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise purchase from the Swingline Lender of any a risk participation in such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available in an amount equal to the Borrower by means product of a credit or wire transfer of funds, as applicable, to an account of such Lender’s Applicable Percentage times the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date amount of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Warrior Met Coal, Inc.), Asset Based Revolving Credit Agreement (Warrior Met Coal, LLC)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to each of (x) FCX, (y) to the extent it is a Borrower and a Subsidiary of FCX at the time the applicable Swingline Loan is made, PXP and (z) subject to Section 10.02(h), PTFI, in each case from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $150,000,000, (ii) the Swingline Lender’s aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the total Revolving Exposures in respect of Loans made to PTFI and Letters of Credit requested by PTFI exceeding the PTFI Exposure exceeding its CommitmentCap; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the a Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon2:00 p.m., New York City time, on the day of a such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the a Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower that shall have requested such Swingline Loan by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the such Borrower designated by the Borrower in writing to maintained with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the applicable Issuing Bank or, to the extent that the Revolving Lenders have made payments pursuant to Section 2.06(e) to reimburse an Issuing Bank, to such Lenders and such Issuing Bank as their interests may appear) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 noon, New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.04 with respect to Loans made by such Lender (and Section 2.06 2.04 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter (i) each participation so acquired in such Swingline Loan shall be deemed to be a Revolving Loan and (ii) payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower Borrowers (or other party on behalf of the BorrowerBorrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; , provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicablethe case may be, if and to the extent such payment is required to be refunded to the Borrower Borrowers for any reason. The failure of any Revolving Lender to purchase of participations any participation in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Borrowers of any default in the payment thereof.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Freeport McMoran Copper & Gold Inc), Revolving Credit Agreement (Freeport McMoran Copper & Gold Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinherein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability PeriodPeriod denominated in dollars, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by of the Swingline Lender exceeding the its Swingline Lender’s Swingline Commitment or Commitment, (ii) the Revolving Exposure of the Swingline Lender’s Lender exceeding its Revolving Credit Commitment or (iii) the Aggregate Revolving Exposure exceeding its Commitment; the aggregate Revolving Commitments, provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone in writing or facsimile (confirmed by e-mail or facsimiletelephone), e-mail or facsimile, not later than 10:00 a.m., New York City time, or, if agreed by the Swingline Lender, 12:00 noon, New York City time, on the day of a such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the requested date (which shall be a Business Day), (ii) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is (iii) the location and number of the Borrower’s account to which funds are to be an ABR Borrowing credited, which shall comply with Section 2.06, or a LMIR Borrowing. If no election as to in the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender case of any Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such notice received from the BorrowerLC Disbursement. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account the general deposit accounts of the Borrower designated by the Borrower in writing to maintained with the Swingline Lender for the applicable Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. No Swingline Lender shall be under any obligation to make a Swingline Loan if any Lender is at that time a Defaulting Lender, if after giving effect to Section 2.22(a)(iv), any Defaulting Lender Fronting Exposure remains outstanding.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.1:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (with references to 12:00 noon, New York City time, in such Section being deemed to be references to 3:00 p.m., New York City time) (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the LendersRevolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; , provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicablethe case may be, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder.
(e) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof, provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
(f) If at any time that Swingline Loans are outstanding a Revolving Lender becomes a Defaulting Lender, the Swingline Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Revolving Lenders in accordance with Section 2.22(a)(iv). If such reallocation cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice and request by the Administrative Agent prepay such unreallocated portion of the Swingline Loans. Notwithstanding the foregoing, the Swingline Lender shall be under no obligation to make any Swingline Loan at any time that any Revolving Lender is a Defaulting Lender unless it is reasonably satisfied that the related exposure will be 100% covered by the Revolving Commitments of the Non-Defaulting Lenders and participating interests in any such newly made Swingline Loan shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.22(a)(iv).
Appears in 2 contracts
Sources: Credit Agreement (Camping World Holdings, Inc.), Credit Agreement (Camping World Holdings, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make Swingline Loans in Dollars to the Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Loan Sublimit, (ii) the aggregate Revolving Credit Exposures would exceed the total Revolving Commitments or (iii) such Swingline Lender’s Revolving Credit Exposure exceeding would exceed its Revolving Commitment; provided further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline Loan. Each Loan Notice, and, in each case, such notice shall be irrevocable irrevocable. Each such Swingline Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested date (borrowing date, which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, p.m. on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments and the conditions set forth in Section 4.01 or Section 4.02, as applicable. The Swingline Lender shall furnish the Borrower with a copy of the applicable Borrowing Request promptly after delivering such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, . Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and such Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or an Event of Default (C) any other occurrence, event or condition, whether or not similar to any reduction or termination of the Commitmentsforegoing; provided, and however, that each Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.01 or Section 4.02, as applicable. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment shall be made without any offseton account of such Swingline Loan, abatement, withholding or reduction whatsoever. Each the Swingline Lender shall comply with will distribute to such Revolving Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Revolving Lender shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent account of the Swingline Lender.
(f) The Borrower shall make all payments of principal and not interest in respect of its Swingline Loans directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Viatris Inc), Revolving Credit Agreement (Viatris Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinof this Agreement, the Swingline Lender agrees agrees, in reliance on the agreement of the other Lenders in this Section 2.02, to make Swingline Loans to the Borrower from time to time during the Availability Period, Commitment Period in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit, notwithstanding the fact that will not result in such Swingline Loans, when aggregated with the Applicable Percentage of the outstanding amount of Loans and LC Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Commitment; provided, that (i) after giving effect to any amount requested, (x) the Facility Usage does not exceed the Aggregate Commitments, and (y) the aggregate principal outstanding amount of the Loans of any Lender, plus such Lender’s Applicable Percentage of the outstanding amount of all LC Obligations, plus such Lender’s Applicable Percentage of the outstanding amount of all Swingline Loans made by the Swingline Lender exceeding the Swingline does not exceed such Lender’s Swingline Commitment or Commitment; and (ii) the Swingline Lender’s Revolving Lender has not received written notice from the Borrower or any Lender at least one (1) Business Day prior to making such Swingline Loan that one or more of the applicable conditions to Credit Exposure exceeding its Commitment; provided that Extensions specified in Section 4.02 is not then satisfied or waived in accordance with the provisions of this Agreement (and the Swingline Lender shall be entitled to conclusively rely on any such notice and shall have no obligation to independently investigate the accuracy of such notice and shall have no liability to the Borrower in respect thereof if such notice proves to be inaccurate); and provided further that the Borrower will not be required to make a use the proceeds of any Swingline Loan to refinance an outstanding any existing Swingline Loan. Within The Borrower will have the foregoing limits and subject option to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and choose whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of is (A) a credit Base Rate Loan, or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of B) a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Daily Floating Eurodollar Loan.
(c) . The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participateany Borrowing shall be a minimum of $500,000. Promptly Each Swingline Loan accruing interest at the Daily Floating Eurodollar Rate shall continue to accrue interest as a Daily Floating Eurodollar Loan at the end of each Interest Period applicable thereto unless and until (x) the Borrower has given notice of conversion to a Base Rate Loan in accordance with Section 2.04, or (y) such Swingline Loan is refunded pursuant to Section 2.02(b).
(b) Immediately upon receipt the making of a Swingline Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such noticeLender’s Applicable Percentage times the amount of such Swingline Loan. The Swingline Lender at any time in its sole and absolute discretion may request, on behalf of the Administrative Agent will give notice thereof Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Lender, specifying Lender make a Base Rate Loan in such notice an amount equal to such Lender’s Applicable Percentage of such the Swingline Loans then outstanding. Such request shall be deemed to be a Loan or Notice under Section 2.03 without regard to the minimum and multiples specified therein of the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02. Each Lender hereby absolutely and unconditionally agreesshall fund its Applicable Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline Lender, upon receipt by delivery of notice as provided aboveimmediately available funds to the Administrative Agent, to pay to the account designated by the Administrative Agent, for the account of the Swingline Lender not later than 1:00 p.m. on the day specified in such a Loan Notice (or, if such Loan Notice is given after 11:00 a.m., then such delivery of funds shall be made no later than 1:00 p.m. on the next Business Day), whereupon each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.
(c) If for any reason any Swingline Loan cannot be refinanced by such a borrowing of Base Rate Loans in accordance with Section 2.02(b), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each Lender fund its risk participation in the relevant Swingline Loan and each Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.02(b) shall be deemed payment in respect of such participation. No Lender’s obligation to fund its Applicable Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Applicable Percentage of a Swingline Loan, such nor shall any Lender’s Applicable Percentage be increased as a result of any such failure of any other Lender to fund its Applicable Percentage of a Swingline Loan.
(d) If any Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.02 by the time required by the terms hereof, the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (d) shall be conclusive absent manifest error.
(e) The Borrower shall pay to the Swingline Lender the amount of each Swingline Loan (unless such Swingline Loan is fully refunded by the Lenders pursuant to Section 2.02(b)): on the earliest to occur of (i) demand by the Swingline Lender and (ii) the Maturity Date applicable to the Swingline Lender. If any portion of any such amount paid to the Swingline Lender shall be recovered by or Loans. on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their Applicable Percentages.
(f) Each Lender acknowledges and agrees that its obligation to acquire participations in refund Swingline Loans pursuant to in accordance with the terms of this paragraph Section 2.02 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination including, without limitation, non-satisfaction of the Commitmentsconditions set forth in Article IV. Whenever, and that each at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment shall be made without any offseton account thereof, abatement, withholding or reduction whatsoever. Each the Swingline Lender shall comply with will distribute to such Lender its obligation under this paragraph by wire transfer of immediately available fundsparticipating interest in such amount (appropriately adjusted, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandiscase of interest payments, to reflect the payment obligations period of the Lenderstime during which such Lender’s participating interest was outstanding and funded), and the Administrative Agent shall promptly pay to the Swingline . Until each Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection to refinance such Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent and not to account of the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Sources: Credit Agreement (Sunoco Logistics Partners L.P.), Credit Agreement (Sunoco Logistics Partners L.P.)
Swingline Loans. (a) Subject The Administrative Agent, the Swingline Lender and the Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the Revolving Lenders and in the amount requested, same day funds to the Borrowers on the applicable Borrowing date to the Funding Account(s) (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05(a) is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Swingline Loan shall be subject to all the terms and conditions set forth hereinapplicable to other ABR Loans funded by the Revolving Lenders, except that all payments thereon shall be payable to the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time solely for its own account. In addition, during the Availability any Dominion Trigger Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by Borrowers hereby authorize the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that to, and the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and shall, subject to the terms and conditions set forth hereinherein (but without any further written notice required), not later than 1:00 p.m., Atlanta time, on each Business Day, make available to the Borrowers by means of a credit to the Funding Account(s), the Borrower may borrow, prepay and reborrow proceeds of a Swingline LoansLoan to the extent necessary to pay items to be drawn on any Operating Account that day (as determined based on notice from the Administrative Agent). The aggregate amount of Swingline Loans outstanding at any time shall not exceed $30,000,000. The Swingline Lender shall not make any Swingline Loan if the requested Swingline Loan exceeds Availability (before giving effect to such Swingline Loan) or if the Required Lenders have notified the Swingline Lender in writing that the conditions to a Borrowing in Section 4.02 are not satisfied. All Swingline Loans shall be ABR Borrowings.
(b) To request Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice each Revolving Lender shall be irrevocable deemed, without further action by any party hereto, to have unconditionally and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise irrevocably purchased from the Swingline Lender without recourse or warranty, an undivided interest and participation in such Swingline Loan in proportion to its Applicable Percentage of any such notice received from the BorrowerCommitments. The Swingline Lender shall make each may, at any time, require the Revolving Lenders to fund their participations. From and after the date, if any, on which any Revolving Lender is required to fund its participation in any Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticepurchased hereunder, the Administrative Agent will give notice thereof shall promptly distribute to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges all payments of principal and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute interest and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the all proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts Collateral received by the Administrative Agent shall be promptly remitted by the in respect of such Loan.
(c) The Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to Agent, on behalf of the Swingline Lender, as their interests may appear; provided shall request settlement (a “Settlement”) with the Revolving Lenders on at least a weekly basis or on any date that any the Administrative Agent elects, by notifying the Revolving Lenders of such payment so remitted shall be repaid to requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon Atlanta time on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender (other than the Swingline Lender or Lender, in the case of the Swingline Loans) shall transfer the amount of such Revolving Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as applicablethe Administrative Agent may designate, if not later than 2:00 p.m., Atlanta time, on such Settlement Date. Settlements may occur during the existence of a Default and whether or not the applicable conditions precedent set forth in Section 4.02 have then been satisfied. Such amounts transferred to the extent Administrative Agent shall be applied against the amounts of the Swingline Lender’s Swingline Loans and, together with Swingline Lender’s Applicable Percentage of such payment Swingline Loan, shall constitute Revolving Loans of such Revolving Lenders, respectively. If any such amount is required to be refunded not transferred to the Borrower for Administrative Agent by any reason. The purchase of participations Revolving Lender on such Settlement Date, the Swingline Lender shall be entitled to recover such amount on demand from such Lender together with interest thereon as specified in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofSection 2.07.
Appears in 2 contracts
Sources: Credit Agreement (Interline Brands, Inc./De), Credit Agreement (Interline Brands, Inc./De)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender hereby agrees to make Swingline Loans under any Revolving Facility in Dollars to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Facility Credit Exposure of the applicable Class exceeding its Commitmentthe total Revolving Facility Commitments of such Class; provided provided, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanBorrowing and the Swingline Lender shall not be under any obligation to make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by the making of such Swingline Loan may have, Fronting Exposure. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline LoanBorrowing, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone (confirmed by e-mail or facsimilea Swingline Borrowing Request), e-mail or facsimile, not later than 12:00 noon2:00 p.m., New York City timeLocal Time, on the day of a proposed Swingline LoanBorrowing. Each such notice and Swingline Borrowing Request shall be irrevocable and shall specify (i) the requested date of such Swingline Borrowing (which shall be a Business Day) of the Swingline Loan, and (ii) the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Swingline Lender shall consult with the Administrative Agent will promptly advise as to whether the making of the Swingline Loan is in accordance with the terms of this Agreement prior to the Swingline Lender of any funding such notice received from the BorrowerSwingline Loan. The Swingline Lender shall make each Swingline Loan available to on the Borrower proposed date thereof by means of a credit or wire transfer of fundsimmediately available funds by 4:00 p.m., as applicableLocal Time, to an the account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanBorrower.
(c) The Swingline Lender may may, by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 noon, New York City timeLocal Time, on any Business Day Day, require the Revolving Facility Lenders under the applicable Revolving Facility to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans outstandingmade by it under such Revolving Facility. Such notice shall specify the aggregate amount of such Swingline Loans in which the Revolving Facility Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each such Lender, specifying in such notice such Revolving Facility Lender’s Applicable applicable Revolving Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender hereby absolutely and unconditionally agrees, promptly upon receipt of notice as provided aboveabove (and in any event, if such notice is received by 12:00 noon, Local Time, on a Business Day no later than 2:00 p.m. Local Time on such Business Day and if received after 12:00 noon, Local Time, on a Business Day, no later than 12:00, noon, Local Time on the immediately succeeding Business Day), to pay to the Administrative Agent, Agent for the account of the Swingline Lender, such Revolving Facility Lender’s Applicable applicable Revolving Facility Percentage of such Swingline Loan or Loans. Each Revolving Facility Lender acknowledges and agrees that its respective obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the any Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Facility Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Revolving Facility Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Facility Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Facility Lenders that shall have made their payments pursuant to this paragraph and to the such Swingline Lender, as their interests may appear; provided provided, that any such payment so remitted shall be repaid to the such Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Sources: Amendment Agreement (Qwest Corp), Incremental Assumption Agreement (Centurylink, Inc)
Swingline Loans. (a) Subject to the terms and conditions herein set forth hereinforth, the Swingline Lender agrees to may (at its sole discretion) make Swingline Loans loans to the Borrower in an Available Currency requested by the Borrower at any time and from time to time during on or after the Availability Period, Closing Date and until the termination of its Swingline Commitment in an aggregate principal amount Principal Amount at any time outstanding that will not result in (ix) the aggregate principal amount Principal Amount of outstanding all Swingline Loans made by exceeding $100,000,000 in the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment aggregate or (iiy) the Swingline Lender’s Aggregate Revolving Credit Exposure exceeding its the Total Revolving Credit Commitment; provided provided, that notwithstanding the foregoing, no Swingline Lender shall not be required obligated to make any Swingline Loans at a time when a Revolving Credit Lender, as the case may be, is a Defaulting Lender, unless such Swingline Lender has entered into arrangements reasonably satisfactory to it and the Borrower to eliminate such Swingline Lender’s risk with respect to the Defaulting Lender’s participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender’s Pro Rata Percentage of the outstanding amount of Swingline Loans, as the case may be (which Cash Collateralization may be made with the proceeds of a simultaneous borrowing of additional Swingline Loans incurred from Non-Defaulting Lenders and otherwise in compliance with the provisions of this Section 2.23). Each Swingline Loan shall be in a principal amount not less than the Minimum Applicable Borrowing Amount. Each Swingline Commitment may be terminated or reduced from time to refinance an outstanding Swingline Loantime as provided herein. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, pay or prepay and reborrow Swingline LoansLoans hereunder subject to the terms, conditions and limitations set forth herein.
(b) To request a Swingline Loan, the Borrower shall notify submit a written notice to the Administrative Agent of such request by telephone (confirmed by e-telecopy or electronic mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be in a form approved by the Administrative Agent (such approval not to be unreasonably withheld), shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender Lenders of any such notice received from the Borrower. The Each Swingline Lender shall at its sole discretion make each its ratable portion of the requested Swingline Loan (such ratable portion to be calculated based upon such Swingline Lender’s Swingline Commitment to the total Swingline Commitments of all of the Swingline Lenders) available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (orfor such purpose, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. The failure of any Swingline Lender to make its ratable portion of a Swingline Loan shall not relieve any other Swingline Lender of its obligations hereunder to make its ratable portion of such Swingline Loan on the date of such Swingline Loan, but no Swingline Lender shall be responsible for the failure of any other Swingline Lender to make the ratable portion of a Swingline Loan to be made by such other Swingline Lender on the date of any Swingline Loan.
(c) The Borrower shall have the right at any time and from time to time to prepay any Swingline Loan made to it, in whole or in part, upon giving written or fax notice by the Borrower (or telephone notice promptly confirmed by written, or fax notice) to the Administrative Agent and the relevant Swingline Lender before 11:00 a.m. on the date of prepayment at such Swingline Lender’s address for notices specified in Section 9.01; provided, that any such notice delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other financing arrangements, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(d) Each Swingline Loan shall be an ABR Loan) and, subject to the provisions of Section 2.07, shall bear interest as provided in Section 2.06(a) or (b), as the case may be.
(e) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, 11:00 a.m. on any Business Day require the Revolving Credit Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount (and the relevant currency) of Swingline Loans in which Revolving Credit Lenders will participate. Promptly The Administrative Agent will, promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Credit Lender, specifying in such notice such Lender’s Applicable Pro Rata Percentage of such Swingline Loan or LoansLoan. Each In furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided aboveabove (and in any event, if such notice is received by 12:00 noon, New York City time, on a Business Day no later than 5:00 p.m. New York City time on such Business Day and if received after 12:00 noon, New York City time, on a Business Day shall mean no later than 10:00 a.m. New York City time on the immediately succeeding Business Day), to pay to the Administrative AgentAgent in US Dollars, for the account of the Swingline Lender, such Revolving Credit Lender’s Applicable Pro Rata Percentage of such Swingline Loan or LoansLoan. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph Section 2.23(e) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the CommitmentsDefault, 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 Section 2.23(e) by wire transfer of immediately available fundsfunds in US Dollars, in the same manner as provided in Section 2.06 2.02(c) with respect to Revolving Loans made by such Lender in the relevant Available Currency (and Section 2.06 2.02(c) shall apply, mutatis mutandis, to the payment obligations of the Revolving Credit Lenders), ) and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Credit Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, Section 2.23(e) and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall and be promptly remitted distributed by the Administrative Agent to the Revolving Credit Lenders that shall have made their payments pursuant to this paragraph Section 2.23(e) and to the Swingline Lender, as their interests may appear; provided provided, that any such payment so remitted shall be repaid to the such Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph Section 2.23(e) shall not relieve the Borrower (or other party liable for obligations of the Borrower) of any default in the payment thereof.
(f) Any Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans.
(g) Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline ▇▇▇▇▇▇ may resign as a Swingline ▇▇▇▇▇▇ at any time upon thirty (30) days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.23(e) above.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Energizer Holdings, Inc.), Credit Agreement (Energizer Holdings, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, in reliance upon the agreements of the other Lenders set forth in this Section 2.17, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during until the Availability Period, Revolving Credit Maturity Date denominated in Dollars in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender Revolving Credit Exposure exceeding the Swingline Lender’s Swingline Commitment aggregate Revolving Credit Commitments or (ii) the aggregate amount of Swingline Lender’s Revolving Credit Exposure Loans outstanding exceeding its Commitmentthe Swingline Sublimit; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request (i) by telephone (confirmed in writing in the form of Exhibit J) or by e-mail facsimile or facsimileelectronic communication in the form of Exhibit J, if arrangements for doing so have been approved by the Swingline Lender (confirmed by telephone), e-mail or facsimile, not later than 12:00 noon11:00 a.m., New York City time, or, if agreed by the Swingline Lender, 3:00 p.m. New York City time on the day of a such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan), the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to in the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender case of any such notice received from Swingline Loan requested to finance the Borrowerreimbursement of an Unpaid Drawing as provided in Section 3.4, the identity of the Letter of Credit Issuer that made the applicable Letter of Credit. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account any accounts of the Borrower designated by the Borrower in writing to maintained with the Swingline Lender for the Swingline Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement Unpaid Drawing as provided in Section 2.05(e)3.4, by remittance to the Issuing Bankapplicable Letter of Credit Issuer) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.2:00 p.m., New York City time, on any Business Day require the Revolving Credit Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Credit Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Credit Lender, specifying in such notice such the Lender’s Applicable Revolving Credit Commitment Percentage of such Swingline Loan or Swingline Loans. Each Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Revolving Credit Commitment Percentage of such Swingline Loan or Swingline Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Credit Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 3.3 with respect to Loans made by such Lender (and Section 2.06 3.3 shall apply, mutatis mutandis, to the payment obligations of the LendersRevolving Credit Lenders pursuant to this paragraph), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Credit Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Credit Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicablethe case may be, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Credit Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Credit Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Credit Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Credit Lender in its capacity as a lender of Swingline Loans hereunder.
(e) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
(f) Any Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.8(a). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans.
(g) Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline Lender may resign as a Swingline Lender at any time upon 30 days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.17(f) above.
Appears in 2 contracts
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.), Joinder Agreement and Amendment No. 5 (BrightSpring Health Services, Inc.)
Swingline Loans. (a) Subject The Administrative Agent, the Swingline Lender and Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after Borrower Representative requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the Lenders and in the amount requested, same day funds to the Borrowers, on the applicable Borrowing date to the Funding Account(s) (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05(a) is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Swingline Loan shall be subject to all the terms and conditions set forth hereinapplicable to other ABR Loans funded by the Lenders, including without limitation the provisions of Section 4.02, except that all payments thereon shall be payable to the Swingline Lender agrees to make Swingline Loans to solely for its own account. In addition, the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by Borrowers hereby authorize the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that to, and the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and shall, subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
herein (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimilebut without any further written notice required), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 1:00 p.m., New York City time, on each Business Day, make available to the Borrowers by means of a credit to the Funding Account, the proceeds of a Swingline Loan to the extent necessary to pay items to be drawn on any Controlled Disbursement Account that Business Day; provided that, if on any Business Day there is insufficient borrowing capacity to permit the Swingline Lender to make available to the Borrowers a Swingline Loan in the amount necessary to pay all items to be so drawn on any such Controlled Disbursement Account on such Business Day, then the Borrowers shall be deemed to have requested an ABR Borrowing pursuant to Section 2.03 in the amount of such deficiency to be made on such Business Day. The aggregate amount of Swingline Loans outstanding at any time shall not exceed $10,000,000. Notwithstanding anything to the contrary contained herein, The Swingline Lender shall not make any Swingline Loan if (i) at any time JPMCB shall be the sole Lender hereunder of (ii) the requested date Swingline Loan exceeds Borrowing Base Availability (after giving effect to such Swingline Loan). All Swingline Loans shall be ABR Borrowings. Borrower acknowledges that as of the Third Restatement Date, the outstanding balance of Swingline Loans is $0.
(b) Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline Loan), each Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Swingline Lender, without recourse or warranty, an undivided interest and participation in such Swingline Loan in proportion to its Applicable Percentage of the Revolving Commitment. The Swingline Lender may, at any time, require the Lenders to fund their participations. From and after the date, if any, on which any Lender is required to fund its participation in any Swingline Loan purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Swingline Loan.
(c) The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a “Settlement”) with the Lenders on at least a weekly basis or on any date that the Administrative Agent elects, by notifying the Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon New York City time on the date of such requested Settlement (the “Settlement Date”). Each Lender may by written notice given (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may designate, not later than 10:00 a.m.2:00 p.m., New York City time, on any Business Day require such Settlement Date. Settlements may occur during the Lenders existence of a Default and whether or not the applicable conditions precedent set forth in Section 4.02 have then been satisfied. Such amounts transferred to acquire participations on such Business Day in all or a portion the Administrative Agent shall be applied against the amounts of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Lender’s Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeand, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such together with Swingline Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agreesLoan, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage shall constitute Revolving Loans of such Swingline Loan or LoansLenders, respectively. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph If any such amount is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made transferred to the Administrative Agent and not to the Swingline Lender. Any amounts received by any Lender on such Settlement Date, the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted entitled to the Administrative Agent; any recover such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, amount on demand from such Lender together with interest thereon as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations specified in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofSection 2.07.
Appears in 2 contracts
Sources: Credit Agreement (GLOBAL INDUSTRIAL Co), Credit Agreement (Systemax Inc)
Swingline Loans. (ai) Subject to the terms and conditions set forth hereinof this Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower Company or Masco Europe from time to time on any Domestic Business Day (if such Swingline Loan is denominated in Dollars) or on any Eurocurrency Business Day (if such Swingline Loan is denominated in an Agreed Swingline Currency other than Dollars) during the Availability Period, period on and after the Closing Date to but excluding the Termination Date in an aggregate principal amount at any time outstanding that will not result Agreed Swingline Currency in (i) the aggregate principal Dollar Amount not to exceed the lesser of (a) $200,000,000 (the "Swingline Amount") and (b) the unused portion of the Aggregate Commitment as of such Domestic Business Day or Eurocurrency Business Day, as the case may be; provided, that the Aggregate Commitment shall be deemed utilized by the aggregate principal Dollar Amount of the Loans outstanding at that time plus the aggregate amount of outstanding L/C Obligations at that time. Each Swingline Loans made by Loan shall be in a principal amount of $1,000,000 or any integral multiple thereof, or if denominated in an Agreed Swingline Currency other than Dollars, the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Approximate Equivalent Amount or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that such other minimum amounts and multiples as the Swingline Lender shall not determine. Each Swingline Loan shall bear interest as set forth in Section 2.06. Subject to Section 2.09, each Swingline Loan denominated in Dollars or euro shall be required repaid with interest on the seventh (7th) day after such Swingline Loan is made (or such shorter period with respect to make principal or interest as the Swingline Lender and the applicable Borrower shall have agreed). Each Swingline Loan denominated in an Agreed Swingline Currency other than Dollars or euro shall be repaid with interest on the thirtieth (30th) day after such Swingline Loan is made (or such shorter period with respect to principal or interest as the Swingline Lender and the applicable Borrower shall have agreed); provided, that upon receipt of written notice from the applicable Borrower no fewer than four (4) Eurocurrency Business Days prior to such Swingline Loan's due date, the Swingline Lender may in its sole and absolute discretion agree to continue such Swingline Loan as a Swingline Loan for an additional thirty (30) day period; provided, however, that no Swingline Loan may be outstanding as a Swingline Loan for a period greater than 180 consecutive days; provided, further, that Masco Europe shall be liable only to refinance an outstanding repay Swingline Loan. Within the foregoing limits and subject Loans made to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline LoansMasco Europe.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(cii) The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded by a Borrowing in Dollars as a Floating Rate Loan to the applicable Borrower from the Banks. If any Swingline Loan is not repaid (or extended as permitted by clause (i) above) by the applicable Borrower on the date when due, each Bank will make available a Borrowing the proceeds of which will be used to repay the Swingline Loan. In each case, upon written notice given thereof by the Swingline Lender to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeAgent, the Administrative Agent will give notice thereof Banks, the relevant Borrower and the Company, the Company shall be deemed to each Lender, specifying have requested a Borrowing (without delivery of a Notice of Borrowing) in such notice such Lender’s Applicable Percentage an amount equal to the Dollar Amount of such Swingline Loan or Loansand such Borrowing shall be made to refund such Swingline Loan (and the minimum amounts in Section 2.01(A) are not applicable to such Borrowing). Each Lender hereby absolutely and unconditionally agreesAny Swingline Loan outstanding in an Agreed Swingline Currency other than Dollars shall, upon receipt the giving of such notice as provided above, to pay to the Administrative Agent, for the account of by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Equivalent Amount of each such Lender’s Applicable Swingline Loan determined as of the date of such conversion. Each Bank shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation Borrowing or, if applicable, to acquire participations purchase a participation interest in the Swingline Loans pursuant to this paragraph is absolute Section 2.01(B)(iii) and unconditional and such obligation shall not be affected by any circumstance whatsoevercircumstance, including, without limitation, (a) any set-off, counterclaim, recoupment, defense or other right which such Bank has or may have against the Swingline Lender, the Agent or the Company or any of its Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 3.01, other than the Swingline Lender making a Swingline Loan when it had received written notice from the Company, Masco Europe or any Bank of the existence of a Default); (b) the occurrence and or continuance of a Default Default, subject to Section 2.01(B)(iii); (c) any adverse change in the condition (financial or an Event otherwise) of Default the Company or any reduction of its Subsidiaries; (d) any breach of this Agreement by the Company or termination Masco Europe or any other Bank; or (e) any other circumstance, happening or event whatsoever, whether or not similar to any of the Commitmentsforegoing (including without limitation the Company's or Masco Europe's failure to satisfy any conditions contained in Article III or any other provision of this Agreement, and so long as the Swingline Lender did not have any specific written notice from the Company, Masco Europe or a Bank that each the conditions to making a Swingline Loan were not satisfied at the time such payment shall be made Swingline Loan was made).
(iii) If, for any reason (including without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer limitation as a result of immediately available funds, in the same manner as provided in Section 2.06 occurrence of a Default with respect to the Company pursuant to Sections 6.01(H) or (I)) Loans may not be made by the Banks as described in Section 2.01(B)(ii), then (a) the relevant Borrower agrees that each Swingline Loan not paid pursuant to Section 2.01(B)(ii) shall bear interest, payable on demand by the Swingline Lender, at the rate per annum equal to the sum of 2% plus the Floating Rate, (b) the Borrowers agree that each Swingline Loan outstanding in an Agreed Swingline Currency other than Dollars shall be immediately and automatically converted to and redenominated in Dollars equal to the Equivalent Amount of such Lender Swingline Loan determined as of the date of such conversion, and (c) effective on the date each such Loan would otherwise have been made, each Bank severally agrees that it shall unconditionally and Section 2.06 shall applyirrevocably, mutatis mutandiswithout regard to the occurrence of any Default, in lieu of deemed disbursement of loans, to the payment obligations extent of such Bank's Commitment, purchase a participation interest in the Swingline Loans by paying its Commitment Percentage thereof, provided, however, that no Bank shall be obligated to purchase such participation in a Swingline Loan made by the Swingline Lender when it had received written notice from the Company, Masco Europe or any Bank of the Lenders)existence of a Default. Each Bank will immediately transfer to the Swingline Lender, in same day funds, the amount of its participation. Each Bank shall share based on its Commitment Percentage in any interest which accrues thereon and in all repayments thereof. If and to the extent that any Bank shall not have so made the amount of such participating interest available to the Swingline Lender, such Bank and the Administrative Agent shall promptly Company severally agree to pay to the Swingline Lender the amounts so received by it forthwith on demand such amount together with interest thereon, for each day from the Lenders. The Administrative Agent shall notify the Borrower date of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received demand by the Swingline Lender from until the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any date such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and amount is paid to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default at (x) in the payment thereofcase of the Company, at the interest rate specified in clause (iii)(a) above and (y) in the case of such Bank, the Federal Funds Effective Rate for the first three (3) days and at the interest rate specified in clause (iii)(a) above thereafter.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Masco Corp /De/), Revolving Credit Agreement (Masco Corp /De/)
Swingline Loans. (a) Subject to For ease of administration, Base Margin Loans may be made by the terms and conditions SwingLine Lender (in the aggregate, the "SWINGLINE LOANS") in accordance with the procedures 45 set forth hereinin this Agreement for the making of loans and advances under the Revolving Credit. The aggregate unpaid principal balance of the SwingLine Loans shall not, the Swingline Lender agrees as to make Swingline Loans to the Borrower from time to time during the Availability Periodall Borrowers, in an aggregate principal amount at any one time outstanding that will not result be in excess of the lesser of (i) as to all Borrowers, the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment SwingLine Loan Ceiling, or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the Swingline as to any Division, Filene's Availability, or VC Availability, as applicable. The SwingLine Lender shall not make a SwingLine Loan if the SwingLine Lender has received notice from the Administrative Agent that the Administrative Agent has suspended, or the Administrative Agent has received written notice from the SuperMajority Lenders instructing the Administrative Agent to suspend, the Revolving Credit in accordance with the terms hereof. Absent such notification, the SwingLine Lender (x) shall not otherwise be required to determine whether the conditions precedent to such SwingLine Loan have been satisfied or whether the requested borrowing would cause Availability, Filene's Availability or VC Availability, as applicable, to be exceeded, and (y) shall be entitled in all cases to have each Revolving Credit Lender make a Swingline Loan to refinance an outstanding Swingline Loan. Within Revolving Credit Loans in settlement of such SwingLine Loans in accordance with the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loansprovisions of Section 13.2 hereof.
(b) To request The aggregate unpaid principal balance of SwingLine Loans shall bear interest at the rate applicable to Base Margin Loans (or a Swingline Loan, money market based rate quoted by the Borrower shall notify Agent and accepted by the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice Lead Borrower) and shall be irrevocable and shall specify repayable as a loan under the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanRevolving Credit.
(c) The Swingline Lender may Borrowers' obligation to repay SwingLine Loans shall be evidenced by written notice given a Note in the form of EXHIBIT 2.8(C), annexed hereto, executed by the Borrowers, and payable to the Administrative Agent not later than 10:00 a.m.SwingLine Lender. Neither the original nor a copy of that Note shall be required, New York City timehowever, on to establish or prove any Business Day require Liability. Upon receipt of an affidavit of an officer of, and a customary indemnity from, a SwingLine Lender as to the Lenders to acquire participations on such Business Day in all loss, theft, destruction or a portion mutilation of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeSwingLine Note, the Administrative Agent Borrowers will give notice issue in lieu thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, replacement SwingLine Note in the same manner principal amount thereof and of like tenor.
(d) For all purposes of this Loan Agreement, the SwingLine Loans and the Borrowers' obligations to the SwingLine Lender constitute Revolving Credit Loans and are secured as "Liabilities".
(e) SwingLine Loans shall be subject to periodic settlement with the Revolving Credit Lenders as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofAgreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Retail Ventures Inc), Loan and Security Agreement (DSW Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make (x) Swingline Loans to the Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Loan Sublimit or (ii) the Swingline Lender’s aggregate Revolving Credit Exposure exceeding its CommitmentExposures would exceed the total Revolving Commitments; provided further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loanand shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 and (ii) the requested date (borrowing date, which shall be a Business Day) . Each such telephonic notice must be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a written Swingline Loan Notice, appropriately completed and signed by a Responsible Officer of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR BorrowingBorrower. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the Borrower with a copy of the applicable Borrowing Request promptly after delivering such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, . Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and such Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or an Event of Default (C) any other occurrence, event or condition, whether or not similar to any reduction or termination of the Commitmentsforegoing; provided, and however, that each Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment shall be made without any offseton account of such Swingline Loan, abatement, withholding or reduction whatsoever. Each the Swingline Lender shall comply with will distribute to such Revolving Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Revolving Lender shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent account of the Swingline Lender.
(f) The Borrower shall make all payments of principal and not interest in respect of the Swingline Loans directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Sources: Restatement Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the Swingline Lender agrees may, in its sole discretion (subject to subsection 2.5(b)), make Swingline Loans a portion of the Revolving Commitments available to the Borrower from time Company by making swingline loans (each such loan, a "Swingline Loan") to time the Company on any Business Day during the Availability Period, period from the Closing Date to the Revolving Termination Date in accordance with the procedures set forth in this Section 2.5 in an aggregate principal amount at any one time outstanding that will not result in to exceed the lesser of (ix) the lesser of (1) the aggregate principal available amount of outstanding the Revolving Commitments and (2) the Borrowing Base and (y) $25,000,000, notwithstanding the fact that such Swingline Loans made by the Swingline Lender exceeding Loans, when aggregated with the Swingline Lender’s Swingline Commitment or (ii) 's outstanding Revolving Loans, may exceed the Swingline Lender’s 's Revolving Credit Exposure exceeding its CommitmentPercentage of the aggregate amount of the Revolving Commitments; provided that at no time shall the sum of the Effective Amount of all Swingline Loans, Revolving Loans and L/C Obligations exceed the lesser of (1) the aggregate amount of the Revolving Commitments and (2) the Borrowing Base. Subject to the other terms and conditions hereof, the Company may borrow under this subsection 2.5(a), prepay pursuant to subsection 2.5(d) and reborrow pursuant to this subsection 2.5(a) from time to time; provided that the Swingline Lender shall not be required obligated to make any Swingline Loan.
(b) The Company shall provide the Administrative Agent and the Swingline Lender irrevocable written notice (or notice by a telephone call confirmed promptly by facsimile) of any Swingline Loan requested hereunder (which notice must be received by the Swingline Lender and the Administrative Agent prior to refinance an outstanding 12:00 p.m. (Chicago time) on the requested Borrowing Date) specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date, which must be a Business Day. Upon receipt of such notice, the Swingline Lender will promptly confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such notice from the Company and, if not, the Swingline Lender will provide the Administrative Agent with a copy thereof. If and only if the Administrative Agent notifies the Swingline Lender on the proposed Borrowing Date that it may make available to the Company the amount of the requested Swingline Loan. Within the foregoing limits and , then, subject to the terms and conditions set forth hereinhereof, the Borrower Swingline Lender may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, make the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as available to the Type Company by crediting the account of the Company on the books of BofA with the amount of such Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise not so notify the Swingline Lender if the Administrative Agent has knowledge that (A) the limitations set forth in the proviso set forth in the first sentence of any subsection 2.5(a) are being violated or would be violated by such notice received from the BorrowerSwingline Loan or (B) one or more conditions specified in Article V is not then satisfied. Each Swingline Loan shall be in an aggregate principal amount equal to $500,000 or a higher integral multiple of $100,000. The Swingline Lender shall make each Swingline Loan available to will promptly notify the Borrower by means of a credit or wire transfer of funds, as applicable, to an account Administrative Agent of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case amount of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such each Swingline Loan.
(c) The Principal of and accrued interest on each Swingline Loan shall be due and payable (i) on demand made by the Swingline Lender may by at any time upon one Business Day's prior notice to the Company with a copy to the Administrative Agent furnished at or before 10:45 a.m. (Chicago time), and (ii) in any event on the Revolving Termination Date. Interest on Swingline Loans shall be for the sole account of the Swingline Lender (except to the extent that the other Lenders have funded the purchase of participations therein pursuant to subsection 2.5(e)).
(d) The Company may, from time to time on any Business Day, make a voluntary prepayment, in whole or in part, of the outstanding principal amount of any Swingline Loan, without incurring any premium or penalty; provided that
(i) each such voluntary prepayment shall require prior written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender no later than 1:00 p.m. (Chicago time) on the amounts so received by it from day on which the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant Company intends to this paragraphmake a voluntary prepayment, and thereafter payments in respect of and
(ii) each such Swingline Loan voluntary prepayment shall be made in an amount equal to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower $500,000 or a higher integral multiple of $100,000 (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicableor, if and to less, the extent such payment is required to be refunded to the Borrower for any reason. The purchase aggregate outstanding principal amount of participations in a all Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofLoans then outstanding).
Appears in 2 contracts
Sources: Credit Agreement (Del Monte Foods Co), Credit Agreement (Del Monte Foods Co)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the including without limitation Section 2.14., each Swingline Lender severally and not jointly agrees to make Swingline Loans to the Borrower from time to time Borrower, during the Availability Periodperiod from the Effective Date to but excluding the Swingline Maturity Date, in an aggregate principal amount at any one time outstanding that will up to, but not result in exceeding, the least (such least amount being referred to as the “Swingline Availability” of a given Swingline Lender) of (i) $100,000,000, as such amount may be reduced from time to time in accordance with the terms hereof, (ii) the difference of (A) the Commitment of such Swingline Lender in its capacity as a Lender minus (B) the aggregate outstanding principal amount of Loans and outstanding Swingline Loans, in each such case, made by such Swingline Lender and the Letter of Credit Liabilities of such Swingline Lender in its capacity as a Lender, and (iii) upon and following satisfaction of the Initial Mortgage Collateral Requirement, the difference of (A) such Swingline Lender’s Commitment Percentage of the then Net Collateral Property Availability (in its capacity as a Lender) minus (B) the aggregate outstanding principal amount of the Loans and outstanding Swingline Loans, in each such case, made by such Swingline Lender and the Letter of Credit Liabilities of such Swingline Lender in its capacity as a Lender. If at any time the aggregate principal amount of outstanding the Swingline Loans made by a Swingline Lender outstanding at such time exceeds the Swingline Availability of such Swingline Lender in effect at such time, the Borrower shall immediately pay the Administrative Agent for the account of such Swingline Lender the amount of such excess. The borrowing of a Swingline Loan shall constitute usage of the Commitments, in an amount equal to (i) for each Lender other than the Swingline Lender exceeding the making such Swingline Loan, each such Lender’s Commitment Percentage, multiplied by the outstanding amount of such Swingline Commitment or Loan and (ii) for the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the applicable Swingline Lender shall not be required to make a making such Swingline Loan to refinance an Loan, the outstanding amount of such Swingline Loan. Within the foregoing limits and subject Subject to the terms and conditions set forth hereinof this Agreement, the Borrower may borrow, prepay repay and reborrow Swingline LoansLoans hereunder.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Sources: Credit Agreement (Diversified Healthcare Trust), Credit Agreement (Diversified Healthcare Trust)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the Swingline Lender agrees to make swingline loans in Dollars (individually, a “Swingline Loans Loan” and collectively, the “Swingline Loans”) to the any Borrower (other than a French Borrower) from time to time during the Availability PeriodRevolving Credit Commitment Period in accordance with the procedures set forth in this Section 2.04, in an aggregate principal amount at any time outstanding provided, that will not result in (i) the aggregate principal amount of outstanding all Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or shall not exceed $25,000,000 at any one time outstanding, (ii) the principal amount of any borrowing of Swingline Lender’s Loans may not exceed the aggregate amount of the Available Tranche A Revolving Credit Commitments of all Tranche A Revolving Lenders immediately prior to such borrowing or result in the Aggregate Tranche A Revolving Credit Exposure then outstanding exceeding its Commitment; provided that the Total Tranche A Revolving Credit Commitments then in effect, and (iii) in no event may Swingline Lender Loans be borrowed hereunder if (x) an Event of Default or Event of Termination shall have occurred and be continuing and (y) such Event of Default or Event of Termination shall not have been subsequently cured or waived. Amounts borrowed by any Swingline Borrower under this Section 2.04 may be required repaid and, up to make a but excluding the Revolving Credit Maturity Date, reborrowed. All Swingline Loan to refinance an outstanding Loans shall at all times be ABR Loans. The relevant Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify give the Administrative Agent notice of such request any Swingline Loan requested hereunder (which notice must be received by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than the Administrative Agent prior to 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall requested Borrowing Date) specifying (A) the amount to be irrevocable borrowed, and shall specify (B) the requested date (which shall be a Business Day) Borrowing Date. Upon receipt of the Swingline Loansuch notice, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will shall promptly advise notify the Swingline Lender of any the aggregate amount of such borrowing. Not later than 3:00 p.m., New York City time, on the Borrowing Date specified in such notice received from the Borrower. The Swingline Lender shall make each such Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an Administrative Agent for the account of the relevant Swingline Borrower designated at the office of the Administrative Agent set forth in Section 10.01 in funds immediately available to the Administrative Agent. Amounts so received by the Administrative Agent will promptly be made available to the relevant Swingline Borrower in writing by the Administrative Agent crediting the account of such Swingline Borrower on the books of such office with the amount made available to the Administrative Agent by the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the Issuing Bank) and in like funds as received by 3:00 p.m., New York City time, on the requested date Administrative Agent. Each borrowing pursuant to this Section 2.04 shall be in a minimum principal amount of such Swingline Loan$1,000,000 or an integral multiple of $100,000 in excess thereof.
(cb) The Notwithstanding the occurrence of any Event of Default or Event of Termination or noncompliance with the conditions precedent set forth in Article IV or the minimum borrowing amounts specified in Section 2.02, if any Swingline Lender may by written notice given to the Administrative Agent not later than Loan shall remain outstanding at 10:00 a.m., New York City time, on any the fifth Business Day require following the Lenders to acquire participations Borrowing Date thereof and if by such time on such fifth Business Day the Administrative Agent shall have received neither (i) a notice of borrowing delivered by the relevant Swingline Borrower pursuant to Section 2.02 requesting that Revolving Loans be made pursuant to Section 2.01 on the immediately succeeding Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify an amount at least equal to the aggregate principal amount of such Swingline Loans in which Lenders will participate. Promptly upon receipt of Loan, nor (ii) any other notice satisfactory to the Administrative Agent indicating such noticeSwingline Borrower’s intent to repay such Swingline Loan on the immediately succeeding Business Day with funds obtained from other sources, the Administrative Agent will give shall be deemed to have received a notice thereof from such Swingline Borrower pursuant to each Lender, specifying Section 2.02 requesting that ABR Revolving Loans be made pursuant to Section 2.01 on such immediately succeeding Business Day in such notice such Lender’s Applicable Percentage an amount equal to the amount of such Swingline Loan, and the procedures set forth in Section 2.02 shall be followed in making such ABR Revolving Loans, provided, that for the purposes of determining each Lender’s Pro Rata Percentage with respect to such Borrowing, the Swingline Loan to be repaid with the proceeds of such borrowing shall be deemed to not be outstanding. The proceeds of such ABR Revolving Loans shall be applied to repay such Swingline Loan.
(c) If, for any reason, ABR Revolving Loans may not be, or Loansare not, made pursuant to paragraph (b) of this Section 2.04 to repay any Swingline Loan as required by such paragraph, effective on the date such ABR Revolving Loans would otherwise have been made, each Tranche A Revolving Lender severally, unconditionally and irrevocably agrees that it shall, without regard to the occurrence of any Default, purchase a participating interest in such Swingline Loan (“Unrefunded Swingline Loan”) in an amount equal to the amount of the ABR Revolving Loan which would otherwise have been made by such Lender pursuant to paragraph (b) of this Section 2.04. Each Tranche A Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay will immediately transfer to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations amount of the Lenders)its participation, and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect proceeds of such Swingline Loan participations shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted distributed by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted . All payments by the Tranche A Revolving Lenders in respect of Unrefunded Swingline Loans and participations therein shall be repaid made in accordance with Section 2.14.
(d) Notwithstanding the foregoing, a Lender shall not have any obligation to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations acquire a participation in a Swingline Loan pursuant to this paragraph the foregoing paragraphs if an Event of Default or Event of Termination shall have occurred and be continuing at the time such Swingline Loan was made and such Lender shall have notified the Swingline Lender in writing, at least one Business Day prior to the time such Swingline Loan was made, that such Event of Default or such Event of Termination has occurred and that such Lender will not relieve the Borrower acquire participations in Swingline Loans made while such Event of any default in the payment thereofDefault or such Event of Termination is continuing.
Appears in 2 contracts
Sources: Credit Agreement (Crown Cork & Seal Co Inc), Credit Agreement (Crown Cork & Seal Co Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make Swingline Loans in Dollars to the U.S. Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Loan Sublimit, (ii) the aggregate Revolving Credit Exposures would exceed the total Revolving Commitments or (iii) unless otherwise agreed by such Swingline Lender, the aggregate amount of Swingline Loans, Revolving Loans and Letters of Credit issued by such Swingline Lender would exceed such Swingline Lender’s Revolving Credit Exposure exceeding its CommitmentCommitments hereunder; provided provided, further, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the U.S. Borrower may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the U.S. Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by telephone (confirmed and shall be irrevocable. Each such notice must be received by e-mail or facsimile), e-mail or facsimile, the Swingline Lender and the Administrative Agent not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested date (borrowing date, which shall be a Business Day) . Each such telephonic notice must be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a written Swingline Loan Notice, appropriately completed and signed by a Responsible Officer of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR BorrowingU.S. Borrower. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 3:00 p.m., New York City time, on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Section 4.04 is not then satisfied, then the Swingline Lender shall make each such Swingline Loan available to the U.S. Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the U.S. Borrower designated by the Borrower in writing to with the Swingline Lender (or, in or the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), Administrative Agent by remittance to the Issuing Bank) by 3:00 4:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by request, on behalf of the U.S. Borrower (and the U.S. Borrower hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of the applicable Class of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.04. The Swingline Lender shall furnish the U.S. Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice given to the Administrative Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage (of the amount of the applicable Class of Swingline Loans) of the aggregate amount specified in such Borrowing Request available to the Administrative Agent in immediately available funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 10:00 a.m.1:00 p.m., New York City time, on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the U.S. Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any Business Day require reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with Section 2.04(c)(i), the Lenders request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to acquire participations on such Business Day in all or be a portion request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of Loan and such notice, Revolving Lender’s payment to the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline LenderLender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Federal Funds Effective Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the U.S. Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default or an Event of Default (C) any other occurrence, event or condition, whether or not similar to any reduction or termination of the Commitmentsforegoing; provided, and however, that each Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.04. No such funding of risk participations shall relieve or otherwise impair the obligation of the U.S. Borrower to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment shall be made without any offseton account of such Swingline Loan, abatement, withholding or reduction whatsoever. Each the Swingline Lender shall comply with will distribute to such Revolving Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Revolving Lender shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Federal Funds Effective Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the U.S. Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent and not to account of the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Sources: Credit Agreement (CONDUENT Inc), Credit Agreement (CONDUENT Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time in dollars during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment $5,000,000 or (ii) the Swingline Lender’s sum of the total Revolving Credit Exposure Exposures exceeding its Commitmentthe total Revolving Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Notwithstanding the foregoing, the Swingline Lender shall not be required to make a Swingline Loan if (i) any Revolving Lender shall be a Defaulting Lender, (ii) any Revolving Lender shall have notified the Swingline Lender and the Borrower in writing at least one Business Day prior to the date of Borrowing with respect to such Swingline Loan that the conditions set forth in Section 5.2 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Swingline Loan or (iii) the Lenders have not made the initial Revolving Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon3:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the aggregate principal amount to be borrowed, (ii) the requested date of such Borrowing, and (which shall be a Business Dayiii) the amount of, and the length of the Swingline Interest Period for, each Swingline Loan, provided, however, that no such Swingline Interest Period shall end after the amount of Business Day immediately preceding the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingMaturity Date. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.9(e), by remittance to the Issuing Bank) by 3:00 3:30 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 11:00 a.m., New York City time, on any Business Day notify the Administrative Agent that the Swingline Lender is 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 Swingline Lender not later than 11:00 a.m., New York City time, on any Business Day require that each Lender, at the Lenders option of the Borrower, (i) make a Revolving Loan in an amount equal to its pro rata Revolving Commitment with respect to the outstanding principal balance of, and accrued and unpaid interest on, the Swingline Loans, or (ii) acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of In either such notice, case (i) the Administrative Agent will give notice shall notify each Lender of the details thereof to each Lender, specifying in such notice and of the amount of such Lender’s Applicable Percentage Revolving 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 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, New York City time, on any Business Day, by no later than 3:00 p.m., New York City time, on such Business Day, or (B) in the event that such Lender receives such notice at or after 12:00 noon, New York City time, on any Business Day, by no later than 1:00 p.m. New York City time on the immediately succeeding Business Day. Any Loans made pursuant to this paragraph (c) shall, for all purposes hereof, be deemed to be Revolving Loans referred to in Section 2.1 and made pursuant to Section 2.4(a), and the Lenders’ obligations to 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 Swingline Loan Lender by promptly crediting or Loansotherwise transferring the amounts so received, in like funds, to the Swingline Lender. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay shall also be liable for an amount equal to the product of its pro rata Revolving Commitment and any amounts paid by the Borrower pursuant to this Section 2.10 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. Whenever the Administrative AgentAgent is reimbursed by the Borrower, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations for any payment in connection with Swingline Loans and such payment relates to an amount previously paid by a Lender pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoeverSection, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall will promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any over such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reasonLender. The purchase of participations in a Swingline Loan or the making by the Lenders of a Revolving Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (General Communication Inc), Credit and Guarantee Agreement (Gci Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability PeriodPeriod upon the Borrower’s request in accordance with the terms of this Section 2.05, the Swingline Lender may agree, but shall have no obligation, to make Swingline Loans in dollars to the Borrower, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $5,000,000, (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Revolving Commitment, or (iii) the Aggregate Revolving Exposure exceeding the aggregate Revolving Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) . To request a Swingline Loan, the Borrower shall notify submit a written notice (a “Swingline Borrowing Notice”) to the Administrative Agent of such request by telephone (confirmed telecopy or through any Electronic System or an Approved Borrower Portal, in each case, if arrangements for doing so have been approved by e-mail or facsimile), e-mail or facsimilethe Administrative Agent, not later than 12:00 noon2:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice Swingline Borrowing Notice shall be in a form approved by the Administrative Agent, shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice Swingline Borrowing Notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower Borrower, to the extent the Swingline Lender elects to make such Swingline Loan, by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender Funding Account(s) (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the Issuing Bank, and in the case of repayment of another Loan or fees or expenses as provided by Section 2.18(c), by remittance to the Administrative Agent to be distributed to the applicable Lenders) by 3:00 p.m., New York City time, promptly following receipt of the applicable Swingline Borrowing Notice on the requested date of such Swingline Loan.
(cb) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice as provided abovefrom the Administrative Agent (and in any event, if such notice is received by 11:00 a.m., New York City time, on a Business Day no later than 4:00 p.m., New York City time on such Business Day and if received after 11:00 a.m., New York City time, “on a Business Day” shall mean no later than 9:00 a.m., New York City time on the immediately succeeding Business Day), to pay to the Administrative AgentAgent in dollars, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation obligations to acquire participations in Swingline Loans pursuant to this paragraph is and to make payments in respect of such acquired participations are absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer in dollars of immediately available funds, in the same manner as provided in Section 2.06 2.07 with respect to Revolving Loans made by such Lender (and Section 2.06 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 2 contracts
Sources: Credit Agreement (Mesa Laboratories Inc /Co/), Credit Agreement (Mesa Laboratories Inc /Co/)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender Lender, in reliance on the agreements of the Revolving Lenders set forth in this Section, agrees to make Swingline Loans under the Revolving Commitments to the Borrower in Dollars from time to time on any Business Day during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Sublimit, (ii) the Swingline Lender’s total Revolving Credit Exposure exceeding its the total Revolving Commitments then in effect, or (iii) Revolving Credit Exposure of any Revolving Lender exceeding such Lender’s Revolving Commitment; provided that that, the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Each Swingline Loan shall be in an amount that is not less than $1,000,000. Swingline Loans shall be Base Rate Loans. Immediately upon the making of a Swingline Loan by the Swingline Lender, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a participation in such Swingline Loan in an amount equal to such Revolving Lender’s Applicable Percentage of the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone submitting a Borrowing Request signed by the Borrower (confirmed by e-mail or facsimilehand delivery, telecopy or, if arrangements for doing so have been approved by the Administrative Agent, electronic communication), e-mail or facsimile, not later than 12:00 noon, New York City time, noon on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an a deposit account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.5(e), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, p.m. on the requested date of such Swingline Loan.
(ci) The Swingline Lender may by written may, at any time and from time to time in its sole and absolute discretion, request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), on one Business Day’s notice given to by the Administrative Agent Swingline Lender not later than 10:00 a.m.12:00 noon, New York City timethat each Revolving Lender make, on any Business Day require the Lenders and each Revolving Lender hereby agrees to acquire participations on make, a Base Rate Loan in an amount equal to such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Revolving Lender’s Applicable Percentage of the amount of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Sections 2.2 and 2.3, without regard to the minimums and multiples specified therein, but subject to the aggregate unused Revolving Commitments and the conditions set forth in Section 4.2. The Swingline Lender shall furnish the Borrower with a copy of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of Borrowing Request promptly after delivering such notice as provided above, to pay to the Administrative Agent, . Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swingline Loan) for the account of the Swingline LenderLender at the Administrative Agent’s office not later than 10:00 a.m. one Business Day after the date of such Borrowing Request, whereupon, subject to clause (c)(ii) of this Section, each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.
(ii) If for any reason any Swingline Loan cannot be refinanced by a Revolving Borrowing in accordance with clause (c)(i) of this Section, the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender (or, if the Swingline Lender has not submitted a request for Base Rate Loans, the Swingline Lender may request by notice to the Administrative Agent) that each of the Revolving Lenders fund its participation in the relevant Swingline Loan and each Revolving Lender’s Applicable Percentage payment to the Administrative Agent for the account of the Swingline Lender pursuant to clause (c)(i) shall be deemed payment in respect of such participation. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan funded pursuant to this clause (c), and thereafter payments in respect of such Swingline Loan or Loans. (to the extent of such funded participations) shall be made to the Administrative Agent and not to the Swingline Lender.
(iii) Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans and make Revolving Loans pursuant to this paragraph Section 2.4 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, counterclaim, recoupment, defense, deduction, abatement, withholding or reduction whatsoever. ; provided that, each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section is subject to the conditions set forth in Section 4.2.
(iv) Each Revolving Lender shall comply with its obligation obligations under this paragraph Section 2.4(c) by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.6 with respect to Loans made by such Revolving Lender (and Section 2.06 2.6 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender’s participation was outstanding and funded and, in the case of principal and interest payments, to reflect such Revolving Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due) shall be promptly remitted remitted, in like funds received, to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent Agent, in such funds, to the Revolving Lenders that shall have made their payments pursuant to this paragraph Section 2.4(c) and to the Swingline Lender, as their interests may appear; provided that that, any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph Section 2.4 shall not relieve the Borrower of any default in the payment thereof.
(v) Any Swingline Lender may resign at any time by giving 30 days’ prior notice of its resignation to the Administrative Agent, the Lenders and the Borrower. Upon receipt of any such notice of resignation, a successor Swingline Lender (which shall be a Lender) may be appointed by the Required Lenders or the Borrower, in each case, with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed). If no such successor shall have been so appointed by the Required Lenders or the Borrower and shall have accepted such appointment within 30 days after the retiring Swingline Lender gives notice of its resignation (or such earlier day as shall be agreed by the Borrower), such resignation shall become effective on such thirtieth day, whether or not a successor has been appointed. After the resignation of a Swingline Lender hereunder, the retiring Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement and the other Loan Documents with respect to Swingline Loans made by it prior to such resignation but shall not be required to make any additional Swingline Loans.
Appears in 1 contract
Sources: Credit Agreement (Globant S.A.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower and CEGP (subject to the CEGP Sublimit) from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $100,000,000, (ii) the sum of the total Exposures exceeding the total Commitments or (iii) with respect to Swingline Lender’s Revolving Credit Loans to CEGP, the CEGP Exposure exceeding its Commitmentthe CEGP Sublimit; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower and CEGP (subject to the CEGP Sublimit) may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower Borrower, for itself or on behalf of CEGP, shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. In connection with the foregoing, CEGP hereby irrevocably appoints the Borrower as its agent for purposes of requesting Swingline Loans hereunder in the name of CEGP. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of ), whether such Swingline Loan is for the Swingline LoanBorrower or CEGP, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower or CEGP, as applicable, by means of a credit to the general deposit account of the Borrower or wire transfer of fundsCEGP, as applicable, to an account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans, as the case may be. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans, as the case may be. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.07 with respect to Loans made by such Lender (and Section 2.06 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower or CEGP (or other party on behalf of the BorrowerBorrower or CEGP) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower or CEGP of any default in the payment thereof.
(d) At any time that there shall exist a Defaulting Lender, the Borrower or CEGP, as applicable, shall, if the full amount of the Fronting Exposure with respect to such Defaulting Lender has not been reallocated pursuant to Section 2.21(a)(iv), deliver to the Swingline Lender cash collateral in an amount equal to 102% of such unallocated Fronting Exposure to secure such unallocated Fronting Exposure with respect to such Defaulting Lender’s Swingline Exposure as required pursuant to Section 2.06(j).
Appears in 1 contract
Sources: Revolving Credit Agreement (Enterprise Products Partners L P)
Swingline Loans. (a) Subject to The Borrowers shall repay the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate then unpaid principal amount of outstanding each Swingline Loans made by Loan on the Revolver Maturity Date, and may repay the then unpaid principal amount of each Swingline Lender exceeding Loan within five Business Days after each such Swingline Loan is made. In the Swingline Lender’s Swingline Commitment or (ii) event the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the Swingline Lender shall Borrowers do not be required to make otherwise repay a Swingline Loan on or before the fifth Business Day after such Swingline Loan is made, such Swingline Loan shall automatically become a Revolving Loan bearing interest at the Base Rate applicable to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify Revolving Loans advanced by the Administrative Agent of ratably for all the Revolving Credit Lenders. With respect to such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Revolving Credit Lenders will participate. Promptly have not acquired participations in accordance with Section 2.4.4, promptly upon receipt of such noticeSwingline Loan automatically becoming a Revolving Loan, the Administrative Agent will give notice thereof to each Revolving Credit Lender, specifying in such notice such Revolving Credit Lender’s Applicable Percentage pro rata share of such Swingline Revolving Loan or Loansproportional to each Revolving Credit Lender’s Revolving Loan Commitment Percentage. Each Revolving Credit Lender hereby absolutely and unconditionally agrees, severally but not jointly, upon receipt of such notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, Agent such Revolving Credit Lender’s Applicable Revolving Loan Commitment Percentage of such Swingline Loan or LoansRevolving Loan. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and pay its proportionate share of such Revolving Loan shall not be affected by any circumstance circumstances whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverwhatsoever (so long as such payment shall not cause such Revolving Credit Lender’s actual share of the Revolving Exposure to exceed such Lender’s Revolving Loan Commitment). Each Revolving Credit Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 6.2 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Centerline Holding Co)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the each Swingline Lender severally agrees to make Swingline Loans to the Borrower from time to time during the Availability PeriodPeriod (each such loan, a “Swingline Loan”), in a minimum amount of $15,000,000 and in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Sublimit, (ii) the aggregate principal amount of outstanding Swingline Loans made by the such Swingline Lender exceeding the such Swingline Lender’s Swingline Commitment or Commitment, (iiiii) the such Swingline Lender’s Revolving Credit Exposure exceeding its CommitmentCommitment or (iv) the sum of the Aggregate Revolving Credit Exposures exceeding the Aggregate Commitments; provided that the no Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, borrow and prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify deliver to the Administrative Agent of such request a Swingline Loan Notice by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan, provided that notice for a proposed Swingline Loan that is an ABR Loan shall be not later than 3:00 p.m., New York City Time, on the date of the proposed ABR Loan that is a Swingline Loan. Each such notice telephonic Swingline Loan Notice shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile, electronic communication or telecopy to the Administrative Agent of a written Swingline Loan Notice. Each Swingline Loan Notice shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender Lenders of any such notice received from the Borrower. The Each Swingline Lender shall make each its ratable portion of the requested Swingline Loan (such ratable portion to be calculated based upon such Swingline Lender’s Swingline Commitment to the total Swingline Commitments of all of the Swingline Lenders) available to the Borrower by means of a credit or wire transfer of funds, as applicable, wiring immediately available funds to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a applicable Swingline Loan Notice, provided that Swingline Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofIssuing Bank.
Appears in 1 contract
Swingline Loans. (a) Subject The Administrative Agent, the Swingline Lender and the Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the Revolving Lenders and in the amount requested, same day funds to the Borrowers on the date of the applicable Borrowing to the Funding Account (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05(a) is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Swingline Loan shall be subject to all the terms and conditions set forth hereinapplicable to other ABR Loans funded by the Revolving Lenders, except that all payments thereon shall be payable to the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding solely for its Commitment; provided that the own account. The Swingline Lender shall not be required to make a any Swingline Loan if, after giving effect to refinance an outstanding such Swingline Loan, Excess Availability would be less than $0. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow All Swingline LoansLoans shall be ABR Borrowings.
(b) To request Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice each Revolving Lender shall be irrevocable deemed, without further action by any party hereto, to have unconditionally and shall specify irrevocably purchased from the requested date (which shall be a Business Day) Swingline Lender, without recourse or warranty, an undivided interest and participation in such Swingline Loan in proportion to its Applicable Percentage of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerRevolving Commitment. The Swingline Lender shall make each may, at any time, require the Revolving Lenders to fund their participations. From and after the date, if any, on which any Revolving Lender is required to fund its participation in any Swingline Loan available purchased hereunder, the Administrative Agent shall promptly distribute to the Borrower by means such Lender, such Lender’s Applicable Percentage of a credit or wire transfer all payments of funds, as applicable, to an account principal and interest and all proceeds of the Borrower designated Collateral received by the Borrower Administrative Agent in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date respect of such Swingline Loan.
(c) The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a “Settlement”) with the Revolving Lenders on at least a weekly basis or more frequently as the Administrative Agent elects, by notifying the Revolving Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 11:00 a.m., Chicago time on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Revolving Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may by written notice given designate, not later than 1:00 p.m., Chicago time, on such Settlement Date. Settlements may occur during the existence of a Default and whether or not the applicable conditions precedent set forth in Section 4.02 have then been satisfied. Such amounts transferred to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require shall be applied against the Lenders to acquire participations on such Business Day in all or a portion amounts of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Lender’s Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeand, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such together with Swingline Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agreesLoan, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage shall constitute Revolving Loans of such Swingline Loan or LoansRevolving Lenders, respectively. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph If any such amount is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made transferred to the Administrative Agent and not to the Swingline Lender. Any amounts received by any Revolving Lender on such Settlement Date, the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted entitled to the Administrative Agent; any recover from such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline LenderLender on demand such amount, together with interest thereon, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations specified in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofSection 2.07.
Appears in 1 contract
Sources: Credit Agreement (ERock, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower Borrowers from time to time during the Availability Period, Period in US Dollars in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender Exposure exceeding the Swingline Lender’s Swingline Commitment US$50,000,000 or (ii) the Swingline Lender’s sum of the aggregate Revolving Credit Exposure Exposures and the aggregate Competitive Loan Exposures exceeding its Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loanaggregate Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the a Borrower shall notify the Administrative Agent give notice of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimiletelecopy) to the Administrative Agent, not later than 12:00 noon, New York City time, time on the day of a the proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the a Borrower. The Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the such Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount amounts of the Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of each such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of each such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower Agent of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the any Borrower (or other party on behalf of the any Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the applicable Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: 364 Day Credit Agreement (American Standard Companies Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the each Swingline Lender agrees to make Swingline Loans to the Borrower Borrowers from time to time during the ABT Availability Period, Period in Euros in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or €150,000,000, (ii) the aggregate principal amount of outstanding Swingline Lender’s Revolving Loans made by such Swingline Lender exceeding its Swingline Commitment, (iii) the Aggregate ABT Credit Exposure exceeding the aggregate amount of the ABT Commitments or (d) the ABT Credit Exposure of any Lender exceeding its ABT Commitment; , provided that the no Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans.
(bi) To request a Swingline Loan directly from one or more Swingline Lenders, a Borrower shall notify the Administrative Agent and each applicable Swingline Lender of such request by delivering a Borrowing Request not later than 12:00 noon, London time, on the day of such proposed Swingline Loan. Each such Borrowing Request shall be irrevocable and shall be effected by telecopy or email of scanned electronic format of a written Borrowing Request signed by the applicable Borrower or by the European J.V. on behalf of such Borrower (promptly followed by telephonic confirmation of such request) to the Administrative Agent. Each such Borrowing Request shall be irrevocable and shall specify the requested date (which shall be a Business Day), the amount of the requested Swingline Loan, which shall be in an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum, and the location and number of the account of the applicable Borrower to which funds are to be disbursed or, in the case of any Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.04(e), the identity of the Issuing Bank that has made such LC Disbursement. The Administrative Agent will promptly advise each applicable Swingline Lender of any such Borrowing Request received from a Borrower. Each applicable Swingline Lender shall make each Swingline Loan to be made by it available to the applicable Borrower by means of a wire transfer to the account specified in such Borrowing Request (which account, in the case of Lux Tires, shall be an account held by Lux Tires outside of the Grand Duchy of Luxembourg) or to the applicable Issuing Bank, as the case may be, by 3:00 p.m., London time, on the requested date of such Swingline Loan.
(ii) To request that the Swingline Lenders provide Swingline Loans on a ratable basis in accordance with the amounts of their respective Swingline Commitments (“Ratable Swingline Loans”), a Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, delivering a Borrowing Request not later than 12:00 noon10:00 a.m., New York City London time, on the day of a such proposed Ratable Swingline LoanLoans. Each such notice Borrowing Request shall be irrevocable and shall be effected by telecopy or email of scanned electronic format of a written Borrowing Request signed by the applicable Borrower or by the European J.V. on behalf of such Borrower (promptly followed by telephonic confirmation of such request) to the Administrative Agent. Each such Borrowing Request shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the requested Ratable Swingline LoanLoans, the aggregate amount of the requested Ratable Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specifiedLoans, then the requested Swingline Borrowing which shall be in an ABR Borrowing. The Administrative Agent will promptly advise integral multiple of the Swingline Lender Borrowing Multiple and not less than the Borrowing Minimum, and the location and number of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the applicable Borrower designated by the Borrower in writing to the Swingline Lender (which funds are to be disbursed or, in the case of a any Ratable Swingline Loan made Loans requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.04(e), by remittance to the identity of the Issuing Bank) Bank that has made such LC Disbursement. The Administrative Agent will promptly advise each Swingline Lender of any such Borrowing Request received from a Borrower and of the amount of the Swingline Loan required to be made by such Swingline Lender as part of such Ratable Swingline Loan. Each Swingline Lender shall make each such Swingline Loan to be made by it available on the requested date thereof by wire transfer of immediately available funds by 3:00 p.m., New York City London time, on to the requested date account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. Promptly after its receipt of all such wire transfers from the Swingline Lenders, the Administrative Agent will make the proceeds of such Swingline Loans available to the relevant Borrower by crediting the amounts received, in like funds, to an account designated by such Borrower in the applicable Borrowing Request (which account, in the case of Lux Tires, shall be an account held by Lux Tires outside of the Grand Duchy of Luxembourg).
(iii) Each Swingline Lender at its option may make any Swingline Loan by causing any domestic or foreign branch or Affiliate of such Swingline Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the relevant Borrower to repay such Loan, or the obligation of any Lender to acquire a participation therein, in accordance with the terms of this Agreement.
(c) The Each Swingline Lender may may, by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 noon, New York City London time, on any Business Day (each date on which such notice is given, a “Notice Date”) require the ABT Lenders to acquire participations on such the second Business Day after the Notice Date in all or a portion of the such Swingline Lender’s outstanding Swingline Loans, and such Swingline Loans outstandingshall be continued on the second Business Day after the Notice Date as a Eurocurrency Borrowing having an Interest Period of one week’s duration; provided that a Swingline Lender shall not give such notice to the Administrative Agent unless it shall have first given the applicable Borrower notice by 2:00 p.m., London time, on the Business Day immediately preceding the Notice Date of its intent to give such notice to the Administrative Agent and the applicable Borrower shall not have given such Swingline Lender notice by 9:00 a.m., London time, on the Notice Date that it agrees to repay such Swingline Loans on or prior to the second Business Day after the Notice Date. Such notice from a Swingline Lender to the Administrative Agent shall specify the aggregate amount of Swingline Loans in which ABT Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each ABT Lender, specifying in such notice such Lender’s Applicable ABT Percentage of such Swingline Loan or Swingline Loans. Each ABT Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the applicable Swingline Lender, such Lender’s Applicable ABT Percentage of such Swingline Loan or Swingline Loans. Each ABT Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the ABT Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each ABT Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the ABT Lenders), and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the ABT Lenders. The Administrative Agent shall notify the applicable Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the applicable Swingline Lender. Any amounts received by the a Swingline Lender from the applicable Borrower (or other party on behalf of the such Borrower) in respect of a Swingline Loan after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the ABT Lenders that shall have made their payments pursuant to this paragraph and to the such Swingline Lender, as their interests may appear; , provided that any such payment so remitted shall be repaid to the such Swingline Lender or to the Administrative Agent, as applicablethe case may be, if and to the extent such payment is required to be refunded to the applicable Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the applicable Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Revolving Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make loans (“Swingline Loans Loans”) to the Parent Borrower from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $10,000,000, (ii) the Swingline Lender’s total Domestic A Revolving Credit Exposure Exposures exceeding its Commitmentthe total amount of the Domestic A Commitments, (iii) the total Revolving A Exposures exceeding the lesser of (A) the total amount of the Domestic A Commitments plus the Canadian Commitments and (B) the Borrowing Base A then in effect and (iv) the total Revolving Exposures exceeding the lesser of (A) the total amount of the Commitments and (B) the Aggregate Borrowing Base then in effect; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Parent Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Parent Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan), the amount of the requested Swingline Loan and whether the wire transfer instructions for the account of the Parent Borrower to which the proceeds of such Borrowing is to Swingline Loan should be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowingtransferred. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Parent Borrower. The Swingline Lender shall make each Swingline Loan available to the Parent Borrower by means of a credit or wire transfer of funds, as applicable, to an the account of the Borrower designated specified by the Parent Borrower in writing to the request for such Swingline Lender Loan (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 2:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Domestic A Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Domestic A Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Domestic A Lender, specifying in such notice such Domestic A Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Domestic A Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Domestic A Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Domestic A Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Domestic A Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Domestic A Lender shall comply with its obligation under this paragraph by making a wire transfer to the Administrative Agent for the benefit of the Swingline Lender of immediately available funds, in the same manner as provided in Section 2.06 with respect to Domestic A Revolving Loans made by such Domestic A Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Domestic A Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Parent Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Parent Borrower (or other party on behalf of the Parent Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Domestic A Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Parent Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Credit Agreement (Pliant Corp)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Initial Availability Period, each Swingline Lender may, but shall have no obligation to, make Swingline Loans to the Company in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the such Swingline Lender exceeding the such Swingline Lender’s Swingline Commitment or (ii) the such Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the a Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Company may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower Company shall notify the Administrative Agent of such request either in writing (delivered by hand or fax) in substantially the form of Exhibit I and signed by the Company or by telephone (confirmed by e-mail or facsimilesuch request a “Swingline Request”), e-mail or facsimile, not later than 12:00 noon, New York City time, 11:00 a.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the each Swingline Lender of any such notice received from the BorrowerCompany. The Each Swingline Lender shall make each its ratable portion of the requested Swingline Loan (such ratable portion to be calculated based upon such Swingline Lender’s Swingline Commitment to the total Swingline Commitments of all of the Swingline Lenders) available to the Borrower Company by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower Company with the Administrative Agent designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)for such purpose, by remittance to the Issuing BankL/C Issuer) by 3:00 p.m., New York City time12:00 noon, on the requested date of such Swingline Loan. Each Swingline Loan shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof.
(c) The failure of any Swingline Lender to make its ratable portion of a Swingline Loan shall not relieve any other Swingline Lender of its obligation hereunder to make its ratable portion of such Swingline Loan on the date of such Swingline Loan, but no Swingline Lender shall be responsible for the failure of any other Swingline Lender to make the ratable portion of a Swingline Loan to be made by such other Swingline Lender on the date of any Swingline Loan.
(d) Any Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage Pro Rata Share of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice as provided abovefrom the Administrative Agent (and in any event, if such notice is received by 11:00 a.m., on a Business Day no later than 3:00 p.m. on such Business Day and if received after 11:00 a.m. on a Business Day shall mean no later than 11:00 a.m. on the immediately succeeding Business Day), to pay to the Administrative Agent, for the account of the such Swingline LenderLenders, such Lender▇▇▇▇▇▇’s Applicable Percentage Pro Rata Share of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.12(b) with respect to Loans made by such Lender (and Section 2.06 2.12(b) shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the such Swingline Lender Lenders the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower Company of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the such Swingline LenderLenders. Any amounts received by the a Swingline Lender from the Borrower Company (or other party on behalf of the BorrowerCompany) in respect of a Swingline Loan after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the such Swingline LenderLenders, as their interests may appear; provided that any such payment so remitted shall be repaid to the such Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower Company for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Company of any default in the payment thereof.
(e) Any Swingline Lender may be replaced at any time by written agreement among the Company, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective, the Company shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.13(a). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans
(f) Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline ▇▇▇▇▇▇ may resign as a Swingline Lender at any time upon 30 days’ prior written notice to the Administrative Agent, the Company and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.04(e) above.
Appears in 1 contract
Sources: Credit Agreement (Azz Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower Borrowers from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $150,000,000, (ii) the Swingline Lender’s aggregate Revolving Exposures exceeding the aggregate Revolving Commitments or (iii) the total Revolving Exposures in respect of Loans made to PTFI and Letters of Credit requested by PTFI exceeding the PTFI Exposure exceeding its CommitmentCap; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the a Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon2:00 p.m., New York City time, on the day of a such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the a Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower that shall have requested such Swingline Loan by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the such Borrower designated by the Borrower in writing to maintained with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the applicable Issuing Bank or, to the extent that the Revolving Lenders have made payments pursuant to Section 2.06(e) to reimburse an Issuing Bank, to such Lenders and such Issuing Bank as their interests may appear) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 noon, New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all [[NYCORP:3265188v16:REMOTE_KFASULLO:03/30/11--12:01 a]] or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.04 with respect to Loans made by such Lender (and Section 2.06 2.04 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter (i) each participation so acquired in such Swingline Loan shall be deemed to be a Revolving Loan and (ii) payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower Borrowers (or other party on behalf of the BorrowerBorrowers) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; , provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicablethe case may be, if and to the extent such payment is required to be refunded to the Borrower Borrowers for any reason. The failure of any Revolving Lender to purchase of participations any participation in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Borrowers of any default in the payment thereof.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the each Swingline Lender agrees may in its sole discretion (and without any obligation to do so) make Swingline Loans in U.S. Dollars to the Borrower Borrowers from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the such Swingline Lender exceeding the such Swingline Lender’s Swingline Commitment or Commitment, (ii) the Euro Amount of such Swingline Lender’s Revolving Credit Exposure exceeding its CommitmentCommitment (such Commitment to be calculated without giving effect to any assignment of any portion of the initial Swingline Lender’s original Commitment as of the Original Closing Date, unless such Swingline Lender also assigns a proportional amount of its Swingline Commitment to the assignee or to another Lender with a Commitment at least equal to the Commitment amount being assigned), or (iii) the Euro Amount of the Total Revolving Credit Exposures exceeding the total Commitments; provided that the a Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower Company, on behalf of the Borrowers, shall notify the Administrative Agent of such request by telephone (confirmed by e-or electronic mail or facsimile), e-mail or facsimile, not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the applicable Borrower requesting such Swingline Loan, the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender Lenders of any such notice received from the BorrowerCompany, on behalf of the Borrowers. The Each Swingline Lender shall make each its ratable portion of the requested Swingline Loan (such ratable portion to be calculated based upon such Swingline Lender’s Swingline Commitment in proportion to the total Swingline Commitments of all of the Swingline Lenders) available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the applicable Borrower with the Administrative Agent designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) for such purpose by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The failure of any Swingline Lender to make its ratable portion of a Swingline Loan shall not relieve any other Swingline Lender of its obligation hereunder to make its ratable portion of such Swingline Loan on the date of such Swingline Loan, but no Swingline Lender shall be responsible for the failure of any other Swingline Lender to make the ratable portion of a Swingline Loan to be made by such other Swingline Lender on the date of any Swingline Loan.
(d) Any Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice as provided abovefrom the Administrative Agent (and in any event, if such notice is received by 12:00 Noon, New York City time, on a Business Day, then no later than 5:00 p.m., New York City time, on such Business Day, and if received after 12:00 Noon, New York City time, on a Business Day, then no later than 10:00 a.m., New York City time, on the immediately succeeding Business Day), to pay to the Administrative Agent, for the account of the such Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.07 with respect to Loans made by such Lender (and Section 2.06 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the such Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower Company of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the such Swingline Lender. Any amounts received by the a Swingline Lender from the Borrower Borrowers (or other party on behalf of the BorrowerBorrowers) in respect of a Swingline Loan after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the such Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the such Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Borrowers of any default in the payment thereof.
(e) Any Swingline Lender may be replaced at any time by written agreement among the Company (on behalf of the Borrowers), the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective, the Borrowers (or the Company, on behalf of the Borrowers) shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.13(a). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans.
(f) Subject to the prior appointment and acceptance of a successor ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, any Swingline ▇▇▇▇▇▇ may resign as a Swingline ▇▇▇▇▇▇ at any time upon thirty days’ prior written notice to the Administrative Agent, the Company (on behalf of the Borrowers) and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.05(e) above.
Appears in 1 contract
Sources: Credit Agreement (Cabot Corp)
Swingline Loans. (a) i. Subject to the terms and conditions set forth hereinherein (including Section 2.21), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability Period, Period denominated in Dollars in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender Revolving Exposures exceeding the Swingline Lender’s Swingline Commitment aggregate Revolving Commitments or (ii) the aggregate amount of Swingline Lender’s Revolving Credit Exposure Loans outstanding exceeding its Commitmentthe Swingline Sublimit; provided that (A) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and (B) the Swingline Lender shall not be under any obligation to make any Swingline Loan if, after giving effect to Section 2.21(a)(iv), any Defaulting Lender Fronting Exposure would remain outstanding. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) ii. To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimilewritten notice, not later than 12:00 noon, New York City time, on the day of a such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan), the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to and, in the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender case of any Swingline Loan requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), the identity of the Issuing Bank that made such notice received from the BorrowerLC Disbursement. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the Borrower designated by the Borrower in writing to maintained with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) iii. The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.2:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such the Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph Section 2.04(c) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph Section 2.04(c) by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the LendersRevolving Lenders pursuant to this Section 2.04(c)), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphSection 2.04(c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph Section 2.04(c) and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicablethe case may be, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph Section 2.04(c) shall not relieve the Borrower of any default in the payment thereof.
iv. The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below; provided that such Swingline Lender is reasonably acceptable to the Administrative Agent (it being understood that each Revolving Lender that is a Lender on the Effective Date shall be deemed as reasonably acceptable to the Administrative Agent). The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder.
v. The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof, provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract
Swingline Loans. (a) The Swingline. Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability PeriodLender, in an aggregate principal amount at any time outstanding that will not result reliance upon the agreements of the other Lenders set forth in this Section 2.18, may in its sole discretion make loans to Borrower (i) the aggregate principal amount of outstanding each such loan, a “Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the Swingline Lender shall not be required to make a Loan”). Each such Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and may be made, subject to the terms and conditions set forth herein, to Borrower, in dollars, from time to time on any Business Day during the Revolving Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swingline Commitment or the Swingline Lender’s Swingline Lender Commitment, notwithstanding the fact that such Swingline Loans, when aggregated with the Pro Rata Revolving Percentage of the outstanding amount of Revolving Loans and LC Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Revolving Commitment; provided, that, () after giving effect to any Swingline Loan, () the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments at such time, and () the Revolving Exposure of any Revolving Lender at such time shall not exceed such Lender’s Revolving Commitment, () Borrower shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan, and () the Swingline Lender shall not be under any obligation to make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, Borrower may borrowborrow under this Section 2.18, prepay under Section 2.10(a), and reborrow Swingline Loans.
(b) To request under this Section 2.18. Immediately upon the making of a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice each Revolving Lender shall be irrevocable deemed to, and shall specify the requested date (which shall be a Business Day) of the Swingline Loanhereby irrevocably and unconditionally agrees to, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise purchase from the Swingline Lender of any a risk participation in such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available in an amount equal to the Borrower by means product of a credit or wire transfer of funds, as applicable, to an account of such Revolving Lender’s Pro Rata Revolving Percentage times the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date amount of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make (x) U.S. Swingline Loans to the Company from time to time during the Availability Period and (y) European Swingline Loans to the Company or the European Borrower from time to time during the Availability Period; provided that no such Swingline Loan under any Revolving Credit Facility shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by under such Revolving Credit Facility would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Loan Sublimit of such Revolving Credit Facility or (ii) the Swingline Lender’s aggregate Revolving Credit Exposure exceeding its CommitmentExposures under such Revolving Credit Facility would exceed the total Revolving Commitments under such Revolving Credit Facility; provided further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Company and/or the European Borrower, as applicable, may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Applicable Participant shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Applicable Participant’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower Company and/or the European Borrower, as applicable, shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline LoanLoan Notice. Each Swingline Loan Notice shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 and (ii) the requested date (borrowing date, which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the such Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the applicable Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Applicable Participant make a Base Rate Loan to such Borrower in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding under the Revolving Credit Facility under which such Swingline Loan or was made. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. Each The Swingline Lender hereby absolutely and unconditionally agrees, upon receipt shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice as provided above, to pay to the Administrative Agent, . Each Applicable Participant shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Applicable Participants fund its risk participation in the relevant Swingline Loan and such Applicable Participant’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Applicable Participant fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Applicable Participant pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Applicable Participant (acting through the Administrative Agent), on demand, such Lenderamount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Applicable Participant pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Applicable Participant’s Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Applicable Percentage of such Swingline Loan or Loans. Participant (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Applicable Participant’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance whatsoevercircumstance, including the occurrence and continuance of a Default (A) any setoff, counterclaim, recoupment, defense or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by other right which such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall may have made their payments pursuant to this paragraph and to against the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender Borrower or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower any other Person for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.reason whatsoever,
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to Lender, in reliance on the agreements of the 2026 Banks set forth in this Section, will make Swingline Loans to the Borrower from time to time during the Availability Periodon any Domestic Business Day, in an aggregate principal amount at any time outstanding that will not result in (i) the Credit Exposure of any 2026 Bank exceeding its Commitment, (ii) the total 2026 Credit Exposures exceeding the total 2026 Commitments or (iii) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its CommitmentSublimit; provided provided, further, that the no Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Each Swingline Loan, Borrowing shall be made upon the Borrower shall notify Borrower’s notice to the Swingline Lender and the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline LoanAgent. Each such notice shall be irrevocable in the form of a written Swingline Borrowing Request, appropriately completed and signed by a Responsible Officer of the Borrower, or may be given by telephone (if promptly confirmed in writing by delivery of such a written Swingline Borrowing Request consistent with such telephonic notice) and must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. (New York City time) on the date of the requested Swingline Borrowing, and such notice shall specify (i) the requested amount to be borrowed, which shall be in a minimum of $5,000,000 or a larger multiple of $1,000,000, and (ii) the date of such Swingline Borrowing (which shall be a Domestic Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing). If no election as Subject to the Type of Swingline Borrowing is specifiedterms and conditions set forth herein, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the Borrower’s account with such Swingline Lender or by wire transfer of funds, as applicable, in accordance with instructions provided to an account of the Borrower designated by the Borrower in writing to (and reasonably acceptable to) the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement L/C Credit Extension as provided in Section 2.05(e2.01(c), by remittance to the respective Issuing Bank) by ), not later than 3:00 p.m., p.m. (New York City time, ) on the requested date of such Swingline Loan.
(ci) Immediately upon the making of a Swingline Loan by the Swingline Lender, and without any further action on the part of the Swingline Lender or the 2026 Banks, the Swingline Lender hereby grants to each Lender, and each 2026 Bank hereby acquires from the Swingline Lender, a participation in such Swingline Loan equal to such 2026 Bank’s Pro Rata Share of the amount of such Swingline Loan. The Swingline Lender may may, by written notice given to the Administrative Agent not later than 10:00 a.m., 1:00 p.m. (New York City time), on any Domestic Business Day Day, require the Lenders 2026 Banks to acquire fund participations on such the Domestic Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders 2026 Banks will participatefund such participations. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender2026 Bank, specifying in such notice such Lender2026 Bank’s Applicable Percentage Pro Rata Share of each such Swingline Loan or LoansLoan. Each Lender 2026 Bank hereby absolutely absolutely, unconditionally and unconditionally irrevocably agrees, upon receipt of notice as provided aboveabove in this paragraph, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender2026 Bank’s Applicable Percentage Pro Rata Share of each such Swingline Loan or LoansLoan. Each Lender 2026 Bank acknowledges and agrees that its obligation to acquire and fund participations in Swingline Loans pursuant to this paragraph is absolute absolute, unconditional and unconditional irrevocable and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Initial Availability Period, each Swingline Lender may, but shall have no obligation to, make Swingline Loans to the Company in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the such Swingline Lender exceeding the such Swingline Lender’s Swingline Commitment or (ii) the such Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the a Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Company may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower Company shall notify the Administrative Agent of such request either in writing (delivered by hand or fax) in substantially the form of Exhibit I and signed by the Company or by telephone (confirmed by e-mail or facsimilesuch request a “Swingline Request”), e-mail or facsimile, not later than 12:00 noon, New York City time, 11:00 a.m. on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the each Swingline Lender of any such notice received from the BorrowerCompany. The Each Swingline Lender shall make each its ratable portion of the requested Swingline Loan (such ratable portion to be calculated based upon such Swingline Lender’s Swingline Commitment to the total Swingline Commitments of all of the Swingline Lenders) available to the Borrower Company by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower Company with the Administrative Agent designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)for such purpose, by remittance to the Issuing BankL/C Issuer) by 3:00 p.m., New York City time12:00 noon, on the requested date of such Swingline Loan. Each Swingline Loan shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof.
(c) The failure of any Swingline Lender to make its ratable portion of a Swingline Loan shall not relieve any other Swingline Lender of its obligation hereunder to make its ratable portion of such Swingline Loan on the date of such Swingline Loan, but no Swingline Lender shall be responsible for the failure of any other Swingline Lender to make the ratable portion of a Swingline Loan to be made by such other Swingline Lender on the date of any Swingline Loan.
(d) Any Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender▇▇▇▇▇▇’s Applicable Percentage Pro Rata Share of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice as provided abovefrom the Administrative Agent (and in any event, if such notice is received by 11:00 a.m., on a Business Day no later than 3:00 p.m. on such Business Day and if received after 11:00 a.m. on a Business Day shall mean no later than 11:00 a.m. on the immediately succeeding Business Day), to pay to the Administrative Agent, for the account of the such Swingline LenderLenders, such Lender▇▇▇▇▇▇’s Applicable Percentage Pro Rata Share of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.12(b) with respect to Loans made by such Lender (and Section 2.06 2.12(b) shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the such Swingline Lender Lenders the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower Company of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the such Swingline LenderLenders. Any amounts received by the a Swingline Lender from the Borrower Company (or other party on behalf of the BorrowerCompany) in respect of a Swingline Loan after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the such Swingline LenderLenders, as their interests may appear; provided that any such payment so remitted shall be repaid to the such Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower Company for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Company of any default in the payment thereof.
(e) Any Swingline Lender may be replaced at any time by written agreement among the Company, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective, the Company shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.13(a). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans
(f) Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline ▇▇▇▇▇▇ may resign as a Swingline Lender at any time upon 30 days’ prior written notice to the Administrative Agent, the Company and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.04(e) above.
Appears in 1 contract
Sources: Credit Agreement (Azz Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the Swingline Lender Lender, in reliance on the agreements of the Revolving Lenders set forth in this Section 2.4, agrees to make loans (each such loan, a “Swingline Loans Loan”) to the any Borrower from time to time on any Business Day during the Availability Period, period from the Closing Date until the Swingline Maturity Date in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit, notwithstanding the fact that will not result in such Swingline Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations of the Revolving Lender acting as Swingline Lender, may exceed the amount of such Lender’s Revolving Commitment; provided, that (x) after giving effect to any Swingline Loan, (i) the Aggregate Revolving Credit Exposure shall not exceed the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Revolving Commitments, and (ii) the Swingline Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Credit Exposure exceeding its Commitment; provided that , (y) such Borrower shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan, and (z) the Swingline Lender shall not be required under any obligation to make a any Swingline Loan to refinance an outstanding if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by making such Swingline Loan, may have, Fronting Exposure. Within the foregoing limits and subject to the terms and conditions set forth herein, the each Borrower may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request In order to make a Borrowing of a Swingline Loan, the applicable Borrower shall notify will give the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile)and the Swingline Lender, e-mail or facsimile, if the Swingline Lender is not also the Administrative Agent) written notice not later than 12:00 noon, New York City time, 3:00 p.m. on the day of requested Borrowing Date, which shall be a proposed Swingline LoanBusiness Day. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-3, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested date (Borrowing Date, which shall be a Business Day) of . Not later than 4:00 p.m. on the requested Borrowing Date, the Swingline LoanLender will make available to the Administrative Agent in accordance with the Payment Instructions an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan and whether Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, upon satisfaction of the applicable conditions set forth in Section 4.2 (and, if such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to on the Type of Swingline Borrowing is specifiedClosing Date, then Section 4.1), the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan all funds so received available to the applicable Borrower in like funds as received by means of a credit the Administrative Agent by crediting or wire transfer of funds, as applicable, wiring such proceeds to an the account of the such Borrower designated by the Borrower in writing to the Swingline Lender (or, identified in the case of a Swingline Loan made most recent Account Designation Letter or as may be otherwise agreed upon by such Borrower and the Administrative Agent from time to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, a.m. on any Business Day require the Revolving Lenders to acquire fund their risk participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participatefund their risk participation. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay make available to the Administrative Agent in accordance with the Payment Instructions an amount, in Dollars and in immediately available funds, equal to its respective risk participation. To the extent the Revolving Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Lender fails to make available to the Administrative Agent the amount of such Lender’s risk participation as provided in this Section 2.4(c), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the account period from the date such payment is required to the date on which such payment is immediately available to such Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such Issuing Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such Issuing Lender in connection with the foregoing. Promptly following its receipt of any payment by or on behalf of any Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has funded a risk participation therein such Lender’s Applicable Percentage of such payment. Until each Lender funds its risk participation in any Swingline Loan pursuant to this Section 2.4(c), interest in respect of such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each shall be solely for the account of the Swingline Lender.
(d) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Lender acknowledges and agrees that to fund its obligation to acquire participations risk participation in any unpaid Swingline Loans pursuant to this paragraph is Section 2.4(c) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including the occurrence and continuance of a Default or an Event of Default or including, without limitation, (i) any reduction or termination of the Commitmentssetoff, and that each such payment shall be made without any offsetcounterclaim, abatementrecoupment, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (defense or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline right which such Revolving Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall may have made their payments pursuant to this paragraph and to against the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to Borrower or any other Person for any reason whatsoever, (ii) the Swingline Lender occurrence or to continuance of any Default or Event of Default, (iii) the Administrative Agent, as applicable, if and to the extent such payment is required failure of any conditions set forth in Section 3.2 or elsewhere herein to be refunded satisfied or (iv) any other occurrence, event or condition, whether or not similar to any of the foregoing. No such funding of risk participations shall relieve or otherwise impair the obligation of the applicable Borrower for any reason. The purchase of participations in a to repay Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofLoans, together with interest as provided herein.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the any Borrower in dollars from time to time on any Business Day during the Availability Period, period from the Effective Date to the tenth Business Day preceding the Termination Date in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender Exposure exceeding the Swingline Commitment (notwithstanding that the Swingline Loans outstanding at any time, when aggregated with the Swingline Lender’s 's other outstanding Revolving Loans hereunder, may exceed the Swingline Lender's Commitment or then in effect), (ii) the sum of the total Credit Exposures exceeding the aggregate Commitments or (iii) such Borrower's Loan Balance exceeding such Borrower's Maximum Permitted Borrowing, PROVIDED that the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that Lender shall not be obligated to make a Swingline Loan to refinance an outstanding Swingline Loan. Notwithstanding the foregoing, the Swingline Lender shall not be required to make a Swingline Loan if (i) prior thereto or simultaneously therewith no Borrower shall have borrowed Revolving Loans, (ii) any Lender shall be in default of its obligations under this Credit Agreement or (iii) any Lender shall have notified the Swingline Lender and the Borrowers in writing at least one Business Day prior to refinance an outstanding the borrowing date with respect to such Swingline Loan, that the conditions set forth in Section 5.2 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Swingline Loan. Within Each Swingline Loan shall be due and payable on the foregoing limits and subject to Maturity Date thereof, provided that in no event shall such Maturity Date be later than the terms and conditions set forth herein, fifth Business Day preceding the Borrower may borrow, prepay and reborrow Swingline LoansTermination Date.
(b) To request a Borrowing of a Swingline Loan, the Borrower to which such Swingline Loan is to be made, shall notify the Administrative Agent and the Swingline Lender of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not fax) no later than 12:00 noon3:00 p.m., New York City time, on the day date of a proposed the relevant Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the identity of the Borrower to which the requested Swingline Loan is to be made, (ii) the principal amount to be borrowed, (iii) the requested date of the borrowing of such Swingline Loan (which shall be a Business Day), and (iv) the requested Maturity Date of such Swingline Loan which shall be not later than seven Business Days after the making of such Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall will make each the requested amount available promptly on that same day in immediately available funds to the Administrative Agent (for the account of such Borrower as set forth in Section 2.4) and the Administrative Agent, thereupon, will promptly make such amount available to such Borrower in like funds as provided therein. Each Swingline Loan available to the Borrower by means shall be in an aggregate amount that is an integral multiple of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan$100,000 and not less than $500,000.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.3:00 p.m., New York City time, on any Business Day require notify the Administrative Agent that the Swingline Lender is requesting that the Lenders make an Alternate Base Rate Borrowing in an amount equal to acquire participations the outstanding principal balance and accrued interest on the Swingline Loans, in which case (i) the Administrative Agent shall notify each Lender of the details thereof and of the amount of such Lender's Revolving Loan to be made as part of such Alternate Base Rate Borrowing, 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 Loan to be made 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 shall have received notice of such Alternate Base Rate Borrowing prior to 3:30 p.m., New York City time on any Business Day, on such Business Day Day, or (B) in all other events, no later than 1:00 p.m., New York City time, on the Business Day immediately succeeding the Business Day upon which such Lender shall have received such notice. Such Loans shall, for all purposes hereof, be deemed to be a Floating Rate Borrowing made pursuant to Section 2.3, and the Lenders obligations to make such Loans shall be absolute and unconditional. The Administrative Agent will make such Loans available to the Swingline Lender by promptly crediting or a portion otherwise transferring the amounts so received, in like funds, to the Swingline Lender for the purpose of repaying in full the Swingline Loans outstanding. Such notice shall specify the aggregate amount of and all accrued interest thereon.
(d) If any Borrower fails to make any payment owed by it with respect to a Swingline Loans in which Lenders will participate. Promptly upon receipt of Loan, or if any such noticesum paid by a Borrower is required to be refunded to such Borrower for any reason, the Administrative Agent will give notice shall notify each applicable Lender of the affected Swingline Loan, the payment then due from or to such Borrower in respect thereof to each and such Lender, specifying 's Applicable Percentage thereof. Each Lender shall purchase a participation in such notice such Lender’s Swingline Loan by paying to the Administrative Agent its Applicable Percentage of the payment then due from such Borrower, in the same manner as provided in Section 2.4 with respect to Loans made by such Lender (and Section 2.4 shall apply, MUTATIS MUTANDIS, to the payment obligations of the applicable Lenders), 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 shall have received notice of such Floating Rate Borrowing prior to 3:30 p.m., New York City time on any Business Day, on such Business Day, or (B) in all other events, no later than 1:00 p.m., New York City time, on the Business Day immediately succeeding the Business Day upon which such Lender shall have received such notice. The Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the applicable Lenders. Promptly following receipt by the Administrative Agent of any payment in respect of such Swingline Loan or Loans. Each from such Borrower, the Administrative Agent shall distribute such payment to the Swingline Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided aboveor, to pay the extent that Lenders have made payments pursuant to the Administrative Agent, for the account of this paragraph to reimburse the Swingline Lender, then to such Lender’s Applicable Percentage of such Lenders and the Swingline Loan or LoansLender as their interests may appear. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph in respect of Swingline Loans is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Credit Agreement (Highland Floating Rate LTD Liability Co)
Swingline Loans. (ai) Subject The Company may request the Administrative Agent to make, and the terms and conditions set forth hereinAdministrative Agent may, the Swingline Lender agrees to in its sole discretion, make Swingline Loans to the Borrower Company from time to time on any Business Day during the Availability Period, period from the Effective Date until the Termination Date in an aggregate principal amount not to exceed at any time outstanding that will not result in the lesser of (iA) $5,000,000 (the "Swingline Facility") and (B) the aggregate principal amount of outstanding Revolving Credit Advances that could be but is not borrowed as of such date. Each Lender's Revolving Credit Commitment shall be deemed utilized by an amount equal to such Lender's pro rata share (based on such Lender's Revolving Credit Commitment) of each Swingline Loan for purposes of determining the amount of Revolving Credit Advances required to be made by such Lender, but no Lender's Revolving Credit Commitment, including NBD's, shall be deemed utilized for purposes of determining commitment fees under Section 2.3(a). Swingline Loans made by shall bear interest at the Adjusted Prime Rate. Within the limits of the Swingline Lender exceeding Facility, so long as the Administrative Agent, in its sole discretion, elects to make Swingline Lender’s Swingline Commitment or Loans, the Company may borrow and reborrow under this Section 2.1(e)(i).
(ii) the Swingline Lender’s Revolving Credit Exposure exceeding The Administrative Agent may at any time in its Commitmentsole and absolute discretion; provided that the Swingline Lender Administrative Agent agrees to do so not less frequently than weekly; provided, further, that the failure of the Administrative Agent to do so with such frequency shall not be required to make a relieve the Revolving Credit Lenders of their obligations hereunder; require that any Swingline Loan to refinance be refunded by a Revolving Credit Loan which is an outstanding Swingline Loan. Within Adjusted Prime Rate Borrowing from the foregoing limits Revolving Credit Lenders, and subject upon written notice thereof by the Administrative Agent to the terms Revolving Credit Lenders and conditions set forth hereinthe Company, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request Company shall be deemed to have requested a Revolving Credit Loan which is an Adjusted Prime Rate Borrowing in an amount equal to the amount of such Swingline Loan, the Borrower and such Adjusted Prime Rate Borrowing shall notify the Administrative Agent of be made to refund such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice Revolving Credit Lender shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, obligated to pay to the Administrative Agent, for the account of the Swingline fund its pro rata share (based on such Revolving Credit Lender, such Lender’s Applicable Percentage 's Revolving Credit Commitment) of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations Adjusted Prime Rate Borrowing or, if applicable, purchase a participating interest in the Swingline Loans pursuant to this paragraph is absolute Section 2.1(e)(iii) and unconditional and such obligation shall not be affected by any circumstance circumstance, including, without limitation, (A) any set-off, counterclaim, recoupment, defense or other right which such Revolving Credit Lender has or may have against the Administrative Agent or the Company or any if its Subsidiaries or anyone else for any reason whatsoever; (B) the occurrence or continuance of an Unmatured Event or an Event of Default, subject to Section 2.1(e)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement or any other agreement by any other Lender, any Borrower or any Guarantor; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation the Company's failure to satisfy any conditions contained in Article II or any other provision of this Agreement). Nothing in this Section shall limit the liability, if any, of the Administrative Agent to any Lender under Section 7.6.
(iii) If, due to any Event of Default (including without limitation as a result of the occurrence of an Event of Default with respect to the Company or any of its Subsidiaries pursuant to Section 6.1(h)) Adjusted Prime Rate Loans may not be made by the Revolving Credit Lenders as described in Section 2.1(e)(ii), then (A) the Company agrees that each Swingline Loan not paid pursuant to Section 2.1(e)(ii) shall bear interest, payable on demand by the Administrative Agent, at the Overdue Rate, and continuance (B) effective on the date each such Adjusted Prime Rate Loan would otherwise have been made, each Revolving Credit Lender severally agrees that it shall unconditionally and irrevocably, without regard to the occurrence of a Default any Unmatured Event or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available fundsother circumstances, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandislieu of deemed disbursement of loans, to the payment obligations extent of the Lenders)such Revolving Credit Lender's Revolving Credit Commitment, and the Administrative Agent shall promptly pay to purchase a participating interest in the Swingline Loans by paying its participation percentage thereof. Each Revolving Credit Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or will immediately transfer to the Administrative Agent, as applicablein same day funds, if the amount of its participation. After such payment to the Administrative Agent, each Revolving Credit Lender shall share on a pro rata basis (calculated by reference to its Revolving Credit Commitment) in any interest which accrues thereon and in all repayments thereof. If and to the extent that any Revolving Credit Lender shall not have so made the amount of such payment is required to be refunded participating interest available to the Borrower Administrative Agent, such Revolving Credit Lender and the Company severally agree to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for any reason. The purchase each day from the date of participations in a Swingline Loan pursuant demand by the Administrative Agent until the date such amount is paid to this paragraph shall not relieve the Borrower of any default Administrative Agent, at (x) in the payment thereofcase of the Company, the interest rate specified above and (y) in the case of such Lender, the Federal Funds Rate for the first five days after the date of demand by the Administrative Agent and thereafter at the interest rate specified above.
Appears in 1 contract
Sources: Loan Agreement (Iae Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to may, in its sole discretion, make Swingline Loans to the Borrower from time to time during the Revolving Availability Period, Period in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment $100,000,000 or (ii) the Swingline Lender’s sum of the total Revolving Credit Exposure Exposures exceeding its Commitmentthe lesser of (A) the total Revolving Commitments at such time and (B) the Borrowing Base Amount in effect at such time minus the sum of (1) the outstanding Tranche 1 Term Loans at such time, (2) the outstanding Tranche 2 Term Loans at such time, (3) the outstanding Tranche 3 Term Loans at such time, (4) the outstanding Other Term Loans at such time, (5) the Other Revolving Exposures at such time and (6) the Additional Senior Debt at such time; provided that (i) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan and (ii) the Swingline Lender shall not have any obligation, under this Agreement or otherwise, to make any Swingline Loan requested by the Borrower hereunder and may, in its sole discretion, decline to make a requested Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) Interest on each Swingline Loan shall be payable on the Interest Payment Date with respect thereto.
(d) The Administrative Agent shall (i) at any time when Swingline Loans in an aggregate principal amount of $10,000,000 or more are outstanding, at the request of the Swingline Lender in its sole discretion, or (ii) on the date that is seven days after the date on which a Swingline Loan was made, deliver on behalf of the Borrower a Borrowing Request pursuant to Section 2.03 for an ABR Revolving Borrowing in the amount of such Swingline Loans; provided, however, that the obligations of the Lenders to fund such Borrowing shall not be subject to the conditions set forth in Section 4.02.
(e) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 noon, New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such noticenotice (but no later than 2:00 p.m., New York City time, on such Business Day), the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon timely receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; , and any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(f) Swingline Loans also may be made available to the Borrower pursuant to any Other Revolving Commitment established by any Loan Modification Agreement or Refinancing Amendment, in each case as provided in such Loan Modification Agreement or Refinancing Amendment.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Swingline Loans. (a) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Lender agrees to make Swingline Loans to the Borrower in its individual capacity agrees, at any time and from time to time during on and after the Availability PeriodClosing Date and prior to the Swingline Maturity Date, to make a loan or loans (each a "Swingline Loan" and, collectively, the "Swingline Loans") to the Borrower by way of overdraft on an account maintained by the Borrower with the Swingline Lender (and designated as such by the Borrower and Swingline Lender), which Swingline Loans (i) shall be (A) Prime Rate Loans, if denominated in an Cdn. Dollars or (B) U.S. Base Rate Loans, if denominated in U.S. Dollars, (ii) shall not exceed at any time the Swingline Commitment, (iii) shall not result in the total amount of all Accommodations made available by the Swingline Lender at any time exceeding the Swingline Lender's Revolving Commitment at such time, (iv) shall not, after giving effect thereto and to the application of the proceeds thereof, exceed in the aggregate principal amount at any time outstanding that will not result in (i) the principal amount of, when added to the aggregate principal amount of all Accommodations then outstanding at such time, the total sum of all Revolving Commitments then in effect and (v) may be repaid and reborrowed in accordance with the provisions hereof. On the Swingline Maturity Date, each outstanding Swingline Loans made by Loan shall be repaid in full. In the event that the Swingline Lender exceeding Loans are not repaid in full on the occurrence of a Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that Repayment Event, the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall promptly notify the Administrative Agent of such request by telephone (confirmed by enon-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on payment and the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) outstanding principal amount of the Swingline Loan, Loans and the amount of accrued and unpaid interest thereon (the requested aggregate of such amounts of principal and interest being the "Outstanding Swingline Amount") and the Administrative Agent shall, in turn, promptly notify each Lender of the Outstanding Swingline Amount and the amount of its Loan in respect thereof, and whether such Borrowing is each Lender shall be irrevocably obligated to be an ABR Borrowing or a LMIR Borrowing. If no election as make Loans to the Type Borrower in the amount of such Lender's Pro Rata Share of the Outstanding Swingline Borrowing is specifiedAmount by 12:00 (noon) (Toronto time) on the Business Day of such notice from the Administrative Agent (if given prior to 10:30 a.m. (Toronto time) on such Business Day; otherwise, then by 12:00 (noon) (Toronto time) on the requested Swingline Borrowing Business Day next following the Business Day of such notice) by making the amount of such Loan available to the Administrative Agent at its Payment Branch. Such Loans shall be an ABR Borrowingmade without regard to the minimum amount restriction imposed under any other provision of this Agreement. The Administrative Agent will promptly advise shall use the proceeds of such Loans solely for the purpose of reimbursing the Swingline Lender of any such notice received from for the Borrower. The Outstanding Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or LoansAmount. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its 's obligation to acquire participations make the Loans referred to in Swingline Loans pursuant to this paragraph is clause shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, any Credit Party or any Person for any reason whatsoever; (ii) the occurrence or continuance of any Default or Event of Default; (iii) any adverse change in the condition (financial or otherwise) of any Credit Party; (iv) the acceleration or maturity of any Accommodations or the termination of any Revolving Commitment after the making of any Swingline Loan; (v) any breach of any Credit Document by any Person; or (vi) any other circumstance, happening or event whatsoever, including the occurrence and continuance of a Default whether or an Event of Default or not similar to any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverforegoing. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner So long as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender continues to be a Lender, each of the amounts so received by it from Lenders agrees to indemnify and save harmless the Lenders. The Administrative Agent shall notify the Borrower Swingline Lender on a rateable basis against all liabilities, obligations, losses, damages, penalties, actions, judgements, suits, costs, expenses, payments or disbursements of any participations kind or nature whatsoever which may be imposed on, incurred by or asserted against the Swingline Lender in any way related to or arising out of any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender (except for any such liabilities to the extent that they result from the Borrower (gross negligence or other party on behalf wilful misconduct of the BorrowerSwingline Lender).
(b) No Notice of Availment is required for Swingline Loans.
(c) Borrowings to repay the Outstanding Swingline Amount shall be made upon the notice specified in respect Section 2.05.
(d) Each reduction of a Swingline Loan after receipt by the Revolving Commitment of the Swingline Lender pursuant to any other Section of this Agreement below the amount of the proceeds Swingline Commitment shall reduce the amount of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofCommitment by like amount.
Appears in 1 contract
Sources: Loan Agreement (MDS Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the Swingline Lender agrees to may (in its sole discretion) make swingline loans (individually, a “Swingline Loans Loan” and collectively, the “Swingline Loans”) to the Borrower from time to time during the Availability PeriodRevolving Commitment Period in accordance with the procedures set forth in this Section 2.04, in an aggregate principal amount at any time outstanding provided that will not result in (i) the aggregate principal amount of outstanding all Swingline Loans made by shall not exceed $5.0 million (the “Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Sublimit”) at any one time outstanding, (ii) the principal amount of any borrowing of Swingline Lender’s Loans may not exceed the aggregate amount of the Available Revolving Credit Commitments of all Revolving Lenders immediately prior to such borrowing or result in the Aggregate Revolving Exposure then outstanding exceeding its Commitment; provided that the Total Revolving Commitments then in effect, and (iii) in no event may Swingline Loans be borrowed hereunder if a Default shall have occurred and be continuing which shall not have been subsequently cured or waived. Amounts borrowed under this Section 2.04 may be repaid and, up to but excluding the Revolving Maturity Date, reborrowed. All Swingline Loans shall at all times be ABR Loans. The Borrower shall give the Administrative Agent notice of any Swingline Loan requested hereunder (which notice must be received by the Administrative Agent prior to 11:00 a.m. on the requested Borrowing Date) specifying (A) the amount to be borrowed, and (B) the requested Borrowing Date. Upon receipt of such notice, the Administrative Agent shall promptly notify the Swingline Lender of the aggregate amount of such borrowing. Not later than 2:00 p.m. on the Borrowing Date specified in such notice the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an Administrative Agent for the account of the Borrower designated at the Administrative Agent’s Office in funds immediately available to the Administrative Agent. Amounts so received by the Administrative Agent will promptly be made available to the Borrower by the Administrative Agent crediting the account of the Borrower identified in writing the most recent Notice of Account Designation with the amount made available to the Administrative Agent by the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the Issuing Bank) and in like funds as received by 3:00 p.m.the Administrative Agent. Each Borrowing pursuant to this Section 2.04 shall be in a minimum principal amount of $500,000 or an integral multiple of $100,000 in excess thereof.
(b) Notwithstanding the occurrence of any Default or noncompliance with the conditions precedent set forth in Article IV or the minimum borrowing amounts specified in Section 2.02, New York City time, if any Swingline Loan shall remain outstanding at 10:00 a.m. on the requested date seventh Business Day following the Borrowing Date thereof and if by such time on such seventh Business Day the Administrative Agent shall have received neither (i) a Borrowing Request delivered by the Borrower pursuant to Section 2.02 requesting that Revolving Loans be made pursuant to Section 2.01 on the immediately succeeding Business Day in an amount at least equal to the aggregate principal amount of such Swingline Loan, nor (ii) any other notice satisfactory to the Administrative Agent indicating the Borrower’s intent to repay such Swingline Loan on the immediately succeeding Business Day with funds obtained from other sources, the Administrative Agent shall be deemed to have received a notice from the Borrower pursuant to Section 2.02 requesting that ABR Revolving Loans be made pursuant to Section 2.01 on such immediately succeeding Business Day in an amount equal to the amount of such Swingline Loan, and the procedures set forth in Section 2.02 shall be followed in making such ABR Revolving Loans. The proceeds of such ABR Revolving Loans shall be applied to repay such Swingline Loan.
(c) The If, for any reason, ABR Revolving Loans may not be, or are not, made pursuant to paragraph (b) of this Section 2.04 to repay any Swingline Loan as required by such paragraph, effective on the date such ABR Revolving Loans would otherwise have been made, each Revolving Lender may by written notice given severally, unconditionally and irrevocably agrees that it shall, without regard to the Administrative Agent not later than 10:00 a.m.occurrence of any Default, New York City time, on any Business Day require the Lenders to acquire participations on such Business Day purchase a participating interest in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans(“Unrefunded Swingline Loan”) in an amount equal to the amount of the ABR Revolving Loan which would otherwise have been made pursuant to paragraph (b) of this Section 2.04. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay will immediately transfer to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations amount of the Lenders)its participation, and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect proceeds of such Swingline Loan participations shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted distributed by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted . All payments by the Revolving Lenders in respect of Unrefunded Swingline Loans and participations therein shall be repaid made in accordance with Section 2.13.
(d) Notwithstanding the foregoing, a Revolving Lender shall not have any obligation to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations acquire a participation in a Swingline Loan pursuant to the foregoing paragraphs if a Default shall have occurred and be continuing at the time such Swingline Loan was made and such Revolving Lender shall have notified the Swingline Lender in writing prior to the time such Swingline Loan was made, that such Default has occurred and that such Revolving Lender will not acquire participations in Swingline Loans made while such Default is continuing.
(e) Notwithstanding anything to the contrary contained in this paragraph Section 2.04, the Swingline Lender shall not relieve be obligated to make any Swingline Loan at a time when any other Lender is a Defaulting Lender, unless the Swingline Lender has entered into arrangements (which may include the delivery of cash collateral) with the Borrower of or such Defaulting Lender which are satisfactory to the Swingline Lender to eliminate the Swingline Lender’s Fronting Exposure (after giving effect to Section 2.23(c)) with respect to any default in the payment thereofsuch Defaulting Lender.
Appears in 1 contract
Sources: Credit Agreement (Consolidated Communications Holdings, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability Period, Period in Dollars (the “Swingline Loans”) in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of the outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment $125,000,000 or (ii) the Swingline Lender’s Aggregate Revolving Credit Exposure exceeding its the Aggregate Revolving Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Each Swingline Loan shall be in at least the minimum amounts required under Section 2.04(f) below. The interest rate for a Swingline Loan shall be determined in accordance with Section 2.13.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City Pittsburgh time, on the day of a the proposed Swingline LoanLoan specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date and (iii) the date such Swingline Loan is to be repaid, if applicable (the “Swingline Loan Repayment Date”). Each The request for such notice Swingline Loan shall be irrevocable and shall specify irrevocable. Provided that all applicable conditions precedent contained herein have been satisfied, the requested Swingline Lender shall, not later than 4:00 p.m., Pittsburgh time, on the date (which shall be a Business Day) of specified in the Borrower’s request for such Swingline Loan, the amount of the requested make such Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from by crediting the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an ’s deposit account of the Borrower designated by the Borrower in writing to the Swingline Lender (with PNC or, in the case of a any Swingline Loan made requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.05(f), by remittance the account of the Issuing Bank that has made such LC Disbursement as notified to the Issuing Bank) Administrative Agent. Each such telephonic Borrowing Request shall be irrevocable and shall be irrevocable and shall be confirmed promptly by 3:00 p.m.hand delivery or facsimile to the Administrative Agent of an executed written Borrowing Request. Promptly following the receipt of a Borrowing Request in accordance with this Section, New York City the Administrative Agent shall advise the Swingline Lender of the details thereof. The obligation of the Borrower to repay the Swingline Loans shall be evidenced by a promissory note of the Borrower dated the date hereof, payable to the order of the Swingline Lender and substantially in the form of Exhibit H (as amended, supplemented or otherwise modified from time to time, on the requested date of such “Swingline LoanNote”).
(c) The Swingline Loans shall be repaid on the earlier of (i) the Revolving Maturity Date and (ii) the Swingline Loan Repayment Date for such Swingline Loan. Notwithstanding anything to the contrary herein, any Swingline Loan at any time shall be repaid upon demand by the Administrative Agent (any such date being the “Swingline Loan Conversion Date”) and the Borrower shall indemnify the Swingline Lender may by written and each other Lender pursuant to Section 2.16 on account of such repayment. Unless the Borrower shall have notified the Administrative Agent prior to 11:00 a.m., Pittsburgh time, on such Swingline Loan Conversion Date that the Borrower intends to repay such Swingline Loan with funds other than the proceeds of a Revolving Loan, the Borrower shall be deemed to have given notice given to the Administrative Agent not later than 10:00 a.m.requesting the Revolving Lenders to make Revolving Loans in U.S. Dollars in an amount equal to the amount of such Swingline Loans, New York City timewhich Revolving Loans shall earn interest at the Alternate Base Rate in effect on the Swingline Loan Conversion Date in an aggregate amount equal to the amount of such Swingline Loan plus interest thereon, and the Revolving Lenders shall, on the Swingline Loan Conversion Date, make ABR Loans (without the requirement that they comply with the conditions for Revolving Loans in Section 2.02 and/or Section 2.03), in an aggregate amount equal to the amount of such Swingline Loan plus interest thereon, the proceeds of which shall be applied directly by the Administrative Agent to repay the Swingline Lender for such Swingline Loan then due plus accrued interest thereon; and provided, further, that if for any Business Day require reason the Lenders proceeds of such Revolving Loans are not received by the Swingline Lender on the Swingline Loan Conversion Date in an aggregate amount equal to acquire participations the amount of such Swingline Loan then due plus accrued interest thereon, the Borrower shall reimburse the Swingline Lender on such Business Day the day immediately following the Swingline Loan Conversion Date, in all or a portion same day funds, in an amount equal to the excess of the amount of such Swingline Loans outstanding. Such notice shall specify Loan then due over the aggregate amount of such Revolving Loans, if any, received plus accrued interest thereon.
(d) In the event that the Borrower shall fail to repay the Swingline Loans Lender as provided in which Lenders will participate. Promptly upon receipt Section 2.04(c), the Swingline Lender shall promptly notify each Revolving Lender of the unpaid amount of such notice, the Administrative Agent will give notice thereof Swingline Loan and of such Revolving Lender’s respective participation therein in an amount equal to each Lender, specifying in such notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or LoansLoan. Each Revolving Lender shall make available to the Administrative Agent for payment to the Swingline Lender (and each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, agrees to pay to the Administrative Agent, for the Swingline Lender on account of the Swingline Lender, such Lender’s participation) an amount equal to its respective participation therein based on its Applicable Percentage of such Swingline Loan or LoansLoans (plus accrued interest thereon), in Dollars and in same day funds at the office of the Administrative Agent specified in such notice. If such notice is delivered by the Administrative Agent by 11:00 a.m., Pittsburgh time, each Revolving Lender shall make funds available to the Administrative Agent on that Business Day. If such notice is delivered after 11:00 a.m., Pittsburgh time, each Revolving Lender shall make funds available to the Administrative Agent on the next Business Day. In the event that any Revolving Lender fails to make available to the Administrative Agent the amount of such Revolving Lender’s participation in such unpaid amount as provided herein, the Swingline Lender shall be entitled to recover such amount on demand from such Revolving Lender together with interest thereon at a rate per annum equal to the Federal Funds Effective Rate for each day during the period between the date such participation amount is required to be paid and the date on which such Revolving Lender makes available its participation in such unpaid amount. The failure of any Revolving Lender to make available to the Administrative Agent its Applicable Percentage of any such unpaid amount shall not relieve any other Revolving Lender of its obligations hereunder to make available to the Administrative Agent its Applicable Percentage of such unpaid amount when due as set forth above. Each Revolving Lender acknowledges and agrees that, in making any Swingline Loan, the Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrower deemed made pursuant to Section 4.02, unless, at least one Business Day prior to the time such Swingline Loan was made, the Majority in Interest of the Revolving Lenders shall have notified the Swingline Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not be satisfied if such Swingline Loan were then made (it being understood and agreed that, in the event the Swingline Lender shall have received any such notice, it shall have no obligation to make any Swingline Loan until and unless it shall be satisfied in its sole discretion that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist). Each Revolving Lender further acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Revolving Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the LendersRevolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower (or any other Person) for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the Borrower of its obligation to repay such Swingline Loan.
(e) In the event the Aggregate Revolving Commitment is terminated in accordance with the terms hereof, the Swingline Loan Commitment shall also be terminated automatically. In the event the Borrower reduces the Aggregate Revolving Commitment to less than the Swingline Loan Commitment, the Swingline Loan Commitment shall immediately be reduced to an amount equal to the Aggregate Revolving Commitment. In the event the Borrower reduces the Aggregate Revolving Commitment to less than the outstanding principal amount of the Swingline Loans then outstanding, the Borrower shall immediately repay the amount by which such outstanding Swingline Loans exceeds the Swingline Loan Commitment as so reduced plus accrued interest thereon.
(f) At no time shall there be more than one (1) outstanding Swingline Loan, except as to Swingline Loans made pursuant to Section 2.04(h), unless otherwise agreed by the Swingline Lender. Each Swingline Loan shall be in a minimum original principal amount of $100,000 and integral multiples of $50,000, except as to Swingline Loans made pursuant to Section 2.04(h), as to which there shall be no minimum.
(g) The Borrower shall have the right at any default time and from time to time to prepay the Swingline Loans, in whole or in part, without premium or penalty (but in any event subject to Section 2.16), upon prior written, facsimile or telephonic notice to the Swingline Lender given by the Borrower no later than 11:00 a.m., Pittsburgh time, on the date of any proposed prepayment. Each notice of prepayment shall specify the Swingline Loan to 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 and any other amounts owed hereunder.
(h) In addition to making Swingline Loans pursuant to the foregoing provisions of this Section 2.04, without the requirement for a specific request from the Borrower pursuant to subsection 2.04(b), the Swingline Lender may make Swingline Loans to the Borrower in Dollars in accordance with the provisions of any agreements between the Borrower and the Swingline Lender relating to the Borrower’s deposit, sweep and other accounts at the Swingline Lender and related arrangements and agreements regarding the management and investment of the Borrower’s cash assets that are satisfactory to the Administrative Agent and Swingline Lender (the “Cash Management Agreements”) to the extent of the daily aggregate net negative balance in the payment thereofBorrower’s accounts which are subject to the provisions of the Cash Management Agreements. Swingline Loans made pursuant to this subsection 2.04(h) in accordance with the provisions of the Cash Management Agreements shall (i) be subject to the limitations as to aggregate amount set forth in subsection 2.04(f), (ii) not be subject to the limitations as to individual amount set forth above in this Section 2.04, (iii) be payable by 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 Revolving Maturity Date), (iv) not be made at any time after the Majority in Interest of the Revolving Lenders shall have notified the Swingline Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not be satisfied if such Swingline Loan were then made (unless the Administrative Agent shall be satisfied in its sole discretion that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist), (v) not be subject to the notice and timing provisions set forth above in this Section, (vi) if not repaid by the Borrower in accordance with the provisions of the Cash Management Agreements, be subject to each Revolving Lender’s obligation to purchase participating interests therein pursuant to Section 2.04(d), and (vii) except as provided in the foregoing subsections (i) through (vi), be subject to all of the terms and conditions of this Section 2.04. If any Cash Management Agreements are in effect, Swingline Loans shall only be made pursuant to such Cash Management Agreements.
(i) Each Revolving Lender shall ratably in accordance with its Applicable Percentage, indemnify the Swingline Lender, its affiliates and their respective directors, officers, agents and employees (to the extent not reimbursed by the Borrower) against any cost, expense (including reasonable counsel fees and expenses), claim, demand, action, loss or liability (except any of the foregoing that results from the indemnitees’ gross negligence or willful misconduct) that such indemnitees may suffer or incur in connection with this Section 2.04 or any action taken or omitted by such indemnitees hereunder.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make Swingline Loans in Dollars to the Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Loan Sublimit, (ii) the aggregate Revolving Credit Exposures would exceed the total Revolving Commitments or (iii) such Swingline Lender’s Revolving Credit Exposure exceeding would exceed its Revolving Commitment; provided further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline Loan. Each Loan Notice, and, in each case, such notice shall be irrevocable irrevocable. Each such Swingline Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested date (borrowing date, which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, p.m. on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the Borrower with a copy of the applicable Borrowing Request promptly after delivering such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, . Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and such Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or an Event of Default (C) any other occurrence, event or condition, whether or not similar to any reduction or termination of the Commitmentsforegoing; provided, and however, that each Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment shall be made without any offseton account of such Swingline Loan, abatement, withholding or reduction whatsoever. Each the Swingline Lender shall comply with will distribute to such Revolving Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Revolving Lender shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent account of the Swingline Lender.
(f) The Borrower shall make all payments of principal and not interest in respect of its Swingline Loans directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the each Borrower from time to time during from and including the Closing Date and prior to the Availability PeriodTermination Date for such Borrower, in an aggregate principal amount at any time outstanding that will not result in the Swingline Exposure exceeding $100,000,000; provided that (i) at no time shall the aggregate principal amount of outstanding Swingline Loans made by Aggregate Outstanding Credit Exposure exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Aggregate Commitment, (ii) at no time shall the Swingline Lender’s Revolving Committed Credit Exposure exceeding of any Lender exceed its CommitmentCommitment and (iii) at no time shall the Subsidiary Credit Exposure of any Borrowing Subsidiary exceed the Subsidiary Sublimit of such Borrowing Subsidiary; and provided further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, each Borrower may, severally and not jointly with the Borrower may other Borrowers, borrow, prepay and reborrow Swingline Loans.
(b) Each Swingline Loan shall bear interest at (i) the rate per annum applicable to Floating Rate Advances or (ii) any other rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days) which shall be quoted by the Swingline Lender on the date such Loan is made and accepted by the applicable Borrower as provided in this Section 2.5; provided, that commencing on any date on which the Swingline Lender requires the Lenders to acquire participations in a Swingline Loan pursuant to Section 2.5(d), such Loan shall bear interest at the rate per annum applicable to Floating Rate Advances.
(c) To request a Swingline Loan, the applicable Borrower shall notify the Administrative Agent Swingline Lender of such request by telephone (confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR BorrowingLoan. If no election as so requested by the applicable Borrower, the Swingline Lender will quote an interest rate that, if accepted by such Borrower, will be applicable to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan, and such Borrower will promptly notify the Swingline Lender in the event it accepts such rate. The Administrative Agent Swingline Lender will promptly advise the Swingline Lender Agent of any such notice received from the such Borrower. The Swingline Lender shall make each Swingline Loan available to the such Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), specified by remittance to the Issuing Bank) such Borrower by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(cd) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage Pro Rata Share of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Pro Rata Share of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.11 with respect to Loans made by such Lender (and Section 2.06 2.11 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Company and the applicable Borrower of any participations participation in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the such Borrower (or other party on behalf of the such Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations participation therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the such Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Revolving Credit Agreement (Amerenenergy Generating Co)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinof this Agreement, the Swingline Lender agrees to make swingline loans (“Swingline Loans Loans”) to the Borrower from time to time during the Availability Commitment Period; provided, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of all outstanding Swingline Loans made by (after giving effect to any amount requested), shall not exceed the Swingline Lender exceeding lesser of (i) the Swingline Lender’s Swingline Commitment or Aggregate Commitments less the sum of all outstanding Loans and the LC Obligations and (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided further that the Swingline Lender shall will not be required to make a Swingline Loan from and after the date which is one (1) day after it has received written notice from the Borrower or any Lender that one or more of the applicable conditions to refinance an outstanding Credit Extensions specified in Section 4.01 is not then satisfied until such conditions are satisfied or waived in accordance with the provisions of this Agreement (and the Swingline LoanLender shall be entitled to conclusively rely on any such notice and shall have no obligation to independently investigate the accuracy of such notice and shall have no liability to the Borrower in respect thereof if such notice proves to be inaccurate). Within the foregoing limits and The amount of any Swingline Loan shall not be subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loansa minimum amount or increment.
(b) To request Swingline Loans shall be refunded by the Lenders on demand by the Swingline Lender. Such refundings of any Swingline Loan shall be made by each Lender in an amount equal to its Applicable Percentage with respect thereto and shall thereafter be reflected as Loans of the Lenders on the books and records of the Administrative Agent. Each Lender shall fund such amount upon demand by the Swingline Lender but in no event later than 1:00 p.m. on the next succeeding Business Day after such demand is made. No Lender’s obligation to fund its Applicable Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Applicable Percentage of a Swingline Loan, the Borrower nor shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of any Lender’s Applicable Percentage be increased as a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender result of any such notice received from the Borrower. The Swingline failure of any other Lender shall make each Swingline Loan available to the Borrower by means fund its Applicable Percentage of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Borrower shall pay to the Swingline Lender may the amount of each Swingline Loan (unless such Swingline Loan is fully refunded by written notice given the Lenders pursuant to Section 2.02(b)), on demand and in no event later than the Maturity Date. In addition, the Borrower hereby authorizes the Administrative Agent not later than 10:00 a.m.to charge any account maintained by the Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of such Swingline Loans. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, New York City time, on any Business Day require the loss of the amount so recovered shall be ratably shared among all the Lenders to acquire participations in accordance with their Applicable Percentages (unless the amounts so recovered by or on such Business Day in all or a portion behalf of the Borrower pertain to a Swingline Loans outstanding. Such notice shall specify Loan extended after the aggregate amount occurrence and during the continuance of Swingline Loans in an Event of Default of which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give has received notice thereof in the manner required pursuant to each LenderSection 10.02 and which such Event of Default has not been waived by the Majority Lenders or the Lenders, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. applicable).
(d) Each Lender acknowledges and agrees that its obligation to acquire participations in refund Swingline Loans pursuant to in accordance with the terms of this paragraph Section 2.02 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination non-satisfaction of the Commitmentsconditions set forth in Article IV. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.02, one of the events described in subsections 8.01(j)(i), 8.01(j)(ii) or 8.01(j)(iii) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided, irrevocable and unconditional participating interest in the Swingline Loans to be refunded in an amount equal to its Applicable Percentage of the aggregate amount of such payment shall be made without any offset, abatement, withholding or reduction whatsoeverSwingline Loans. Each Lender shall comply with its obligation under this paragraph by wire will immediately transfer of to the Swingline Lender, in immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations amount of the Lenders)its participation, and the Administrative Agent shall promptly pay to upon receipt thereof, the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the amounts so date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received by it from any Lender such Lender’s participating interest in a Swingline Loan, the LendersSwingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded). The Administrative Agent Notwithstanding the foregoing provisions of this Section 2.02(d), a Lender shall notify the Borrower of any participations in any have no obligation to refund a Swingline Loan acquired pursuant to this paragraphSection 2.02(b) if (i) a Default shall exist at the time such refunding is requested by the Swingline Lender, (ii) such Default had occurred and thereafter payments in respect of was continuing at the time such Swingline Loan shall be was made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from and (iii) such Lender notified the Borrower Swingline Lender in writing, not less than one (or other party on behalf of 1) Business Day prior to the Borrower) in respect of a Swingline Loan after receipt making by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders Swingline Loan, that shall have such Default has occurred and is continuing and that such Lender will not refund Swingline Loans made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any while such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment Default is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofcontinuing.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Either Borrower shall notify give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of such request by telephone each Swingline Borrowing (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, "Notice of Swingline Borrowing") prior to 11:00 a.m. on the day requested date of a proposed each Swingline LoanBorrowing. Each such notice Notice of Swingline Borrowing shall be irrevocable and shall specify specify: (i) the requested principal amount of such Swingline Loan, (ii) the date of such Swingline Loan (which shall be a Business Day) and (iii) the account of such Borrower to which the Swingline Loan, the amount proceeds of the requested such Swingline Loan and whether such Borrowing is to should be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowingcredited. The Administrative Agent will promptly advise the Swingline Lender of any each Notice of Swingline Borrowing. Each Swingline Loan shall accrue interest at the Swingline Rate. The aggregate principal amount of each Swingline Loan shall be not less than $100,000 or a larger multiple of $50,000, or such notice received from other minimum amounts agreed to by the Swingline Lender and such Borrower. The Swingline Lender shall will make the proceeds of each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the such Borrower in writing to Dollars in immediately available funds at the Swingline Lender (or, account specified by such Borrower in the case applicable Notice of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, Borrowing not later than 1:00 p.m. on the requested date of such Swingline Loan. Upon the written request of any Lender (but no more often than quarterly), the Administrative Agent will notify any requesting Lender if any Swingline Loans occurred during the applicable quarter.
(b) The Swingline Lender, at any time and from time to time in its sole discretion, may, on behalf of the applicable Borrower (each Borrower hereby irrevocably authorizes and directs the Swingline Lender to act on its behalf), give a Borrowing Request to the Administrative Agent requesting the Lenders (including the Swingline Lender) to make Base Rate Loans in an amount equal to the unpaid principal amount of any Swingline Loan. Administrative Agent shall give prompt notice of such Borrowing Request to Lenders. Unless a Lender shall have delivered to Swingline Lender a copy of a Notice of Default given to Administrative Agent pursuant to Section 10.9 at least two (2) Business Days prior to Swingline Lender's making any Swingline Loan and the Default subject to such Notice of Default continues to exist, such Lender will make the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative Agent for the account of the Swingline Lender, which will be used solely for the repayment of such Swingline Loan.
(c) The If for any reason a Base Rate Loan may not be (as determined in the sole discretion of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then each Lender (other than the Swingline Lender), unless such Lender shall have delivered to Swingline Lender may by written notice a copy of a Notice of Default given to Administrative Agent pursuant to Section 10.9 at least two (2) Business Days prior to Swingline Lender's making any Swingline Loan and the Default subject to such Notice of Default continues to exist, shall purchase an undivided participating interest in such Swingline Loan in an amount equal to its pro rata share thereof on the date that such Base Rate Loan should have occurred. On the date of such required purchase, each such Lender shall promptly transfer, in immediately available funds, the amount of its participating interest to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of . If such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoeverbears interest at a rate other than the Base Rate, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to automatically become a Base Rate Loan on the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf effective date of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent participation and interest shall be promptly remitted by the Administrative Agent become payable on demand.
(d) Each Lender's obligation to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in make a Swingline Base Rate Loan pursuant to this paragraph shall not relieve Section 2.3.2(b) or to purchase the Borrower of any default in the payment thereof.participating interests pursuant to Section 2.3.2
Appears in 1 contract
Sources: Credit Agreement (United Surgical Partners International Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make Swingline Loans in Dollars to the Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Loan Sublimit, (ii) the aggregate Revolving Credit Exposures would exceed the total Revolving Commitments or (iii) such Swingline Lender’s Revolving Credit Exposure exceeding would exceed its Revolving Commitment; provided further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline Loan. Each Loan Notice, and, in each case, such notice shall be irrevocable irrevocable. Each such Swingline Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested date (borrowing date, which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, p.m. on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account amount of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or LoansLoans then outstanding. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without any offsetregard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer but subject to the unutilized portion of immediately available funds, in the same manner as provided Revolving Commitments and the conditions set forth in Section 2.06 with respect to Loans made by such Lender (and 4.03 or Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.4.04
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, at any time from the Second A&R Effective Date until the Revolving Maturity Date, each Swingline Lender severally agrees to make Swingline Loans Loans, denominated in dollars, to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of the outstanding Swingline Loans exceeding $15,000,000, (ii) the aggregate principal amount of outstanding Swingline Loans made by the such Swingline Lender exceeding the such Swingline Lender’s Swingline Commitment or Commitment, (iiiii) the such Swingline Lender’s Revolving Credit Exposure exceeding such Swingline Lender’s Revolving Commitment (in its capacity as a Lender) or (iv) the Aggregate Revolving Exposure exceeding the Aggregate Revolving Commitment; provided that the (A) no Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and (B) each Swingline Loan shall be made as part of a Borrowing consisting of Swingline Loans made by the Swingline Lenders ratably in accordance with their respective Swingline Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. The failure of any Swingline Lender to make any Swingline Loan required to be made by it shall not relieve any other Swingline Lender of its obligations hereunder; provided that the Swingline Commitments of the Swingline Lenders are several and no Swingline Lender shall be responsible for any other Swingline Lender’s failure to make Swingline Loans as required.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimiletelephone, not later than 12:00 noon, New York City time, on the day of a such proposed Swingline Loan. Each such notice shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of a written Borrowing Request signed by a Responsible Officer of the Borrower. Each such telephonic and written Borrowing Request shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender Lenders of any such notice received from the Borrower. The Each Swingline Lender shall make each its ratable portion of the requested Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower maintained with the Administrative Agent designated by the Borrower in writing to the Swingline Lender for such purpose (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.04(e), by remittance to the applicable Issuing Bank or, to the extent that the Revolving Lenders have made payments pursuant to Section 2.04(e) to reimburse such Issuing Bank, to such Revolving Lenders and such Issuing Bank as their interests may appear) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Any Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 noon, New York City time, on any Business Day Day, require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Revolving Lenders will be required to participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the such Swingline LenderLenders, such Revolving Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that, in making any Swingline Loan, each Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrower deemed made pursuant to Section 4.02 unless, at least one Business Day prior to the time such Swingline Loan was made, the Required Lenders shall have notified such Swingline Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not be satisfied if such Swingline Loan were then made (it being understood and agreed that, in the event such Swingline Lender shall have received any such notice, it shall have no obligation to make any Swingline Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist). Each Revolving Lender further acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.05 with respect to Revolving Loans made by such Lender (and Section 2.06 2.05 shall apply, mutatis mutandis, to the payment obligations of the LendersRevolving Lenders under this paragraph), and the Administrative Agent shall promptly pay remit to the applicable Swingline Lender Lenders the amounts so received by it from the Revolving Lenders. The Administrative Agent shall promptly notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph by any Revolving Lenders, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the such Swingline LenderLenders. Any amounts received by the a Swingline Lender from the Borrower (or other party Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the such Swingline Lender of the proceeds of a sale of participations therein from the Revolving Lenders shall be promptly remitted by such Swingline Lender to the Administrative Agent; and any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the applicable Swingline LenderLenders, as their interests may appear; provided that any such payment so remitted shall be repaid to the applicable Swingline Lender Lenders or to the Administrative Agent, as applicable, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the Borrower of any default in the payment thereofits obligation to repay such Swingline Loan.
Appears in 1 contract
Sources: Credit Agreement (Comtech Telecommunications Corp /De/)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the The Swingline Lender agrees is authorized by the Lenders, but is not obligated, to make Swingline Loans up to $25,000,000 plus the Borrower from time to time during Permitted Overadvance in the Availability Period, in an aggregate principal amount outstanding at any time outstanding that will not result in (i) time, consisting only of Base Rate Loans, upon a notice of Borrowing received by the aggregate principal amount of outstanding Swingline Loans made by Administrative Agent and the Swingline Lender exceeding (which notice, at the Swingline Lender’s Swingline Commitment or (ii) discretion, may be submitted prior to 1:00 p.m., Boston time, on the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the Swingline Lender shall not be required to make a Business Day on which such Swingline Loan to refinance an outstanding is requested). Swingline Loan. Within the foregoing limits and Loans shall be subject to periodic settlement with the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline LoansRevolving Lenders under SECTION 2.07 below.
(b) To request a Swingline LoanLoans may be made only in the following circumstances: (A) for administrative convenience, the Borrower Swingline Lender may, but is not obligated to, make Swingline Loans in reliance upon the Borrowers’ actual or deemed representations under SECTION 4.02, that the applicable conditions for borrowing are satisfied or (B) for Permitted Overadvances, or (C) if the conditions for borrowing under SECTION 4.02 cannot be fulfilled, the Borrowers shall notify give immediate notice thereof to the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders“Noncompliance Notice”), and the Administrative Agent shall promptly pay to provide each Lender with a copy of the Noncompliance Notice. If the conditions for borrowing under SECTION 4.02 cannot be fulfilled, the Required Lenders may direct the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphto, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from thereupon shall, cease making Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with SECTION 9.02 hereof. Unless the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Required Lenders that shall have made their payments pursuant to this paragraph and to so direct the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or may, but is not obligated to, continue to make Swingline Loans beginning one Business Day after the Non-Compliance Notice is furnished to the Administrative AgentLenders. Notwithstanding the foregoing, as applicable, if and to the extent such payment is required to no Swingline Loans shall be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan made pursuant to this paragraph shall not relieve subsection (b) (other than Permitted Overadvances) if the Borrower aggregate outstanding amount of the Credit Extensions and Swingline Loans would exceed the lower of (i) $300,000,000 or any default in lesser amount to which the payment thereofRevolving Commitments have then been reduced by the Borrowers pursuant to SECTION 2.15 or any greater amount to which the Revolving Commitments have then been increased pursuant to SECTION 2.29, and (ii) the then amount of the Borrowing Base.
Appears in 1 contract
Sources: Credit Agreement (Jo-Ann Stores Inc)
Swingline Loans. (a) Subject In addition to the terms and conditions set forth hereinother options available to the Borrower hereunder, the Swingline Lender agrees agrees, subject to the following terms and conditions, to make Swingline Loans in dollars to the Borrower from time to time during the Availability Period, in an aggregate principal amount not to exceed $60,000,000. Swingline Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.7 hereof. All Swingline Loans shall bear interest at any time outstanding that will the Libor Market Index Rate and shall be deemed to be Adjusted Base Rate Borrowings. Swingline Loans shall be funded by ▇▇▇▇▇ in an amount not result in (i) to exceed the maximum amount it is required to disburse pursuant to the next sentence. In no event shall the Swingline Lender be required to fund a Swingline Loan if it would increase the total aggregate principal amount of outstanding Swingline Loans to an amount in excess of $60,000,000 or if, after giving effect thereto, the Total Revolving Exposure would exceed the Aggregate Revolving Commitment. Upon request of the Swingline Lender made to all the Revolving Lenders, each Revolving Lender irrevocably agrees to purchase its Percentage of any Swingline Loan made by the Swingline Lender exceeding 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 that such Event of Default did not exist at the time the Swingline Loan was made and provided further that no Lender shall be required to have its Revolving Exposure to be greater than its Revolving Commitment. Such purchase shall take place on the date of the request by Swingline Lender so long as such request is made by 11:00 a.m. (Central 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 Swingline Loan shall, to the extent purchased, (i) be treated as a Loan made by the purchasing Lenders and not by the selling Lender for all purposes under this Agreement and the payment of the purchase price by a Lender shall be deemed to be the making of a Loan by such Lender and shall constitute outstanding principal hereunder and under such Lender’s Swingline Commitment or Note, and (ii) shall no longer be considered a Swingline Loan except that all interest accruing on or attributable to such Swingline Loan for the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that 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 Swingline Lender and all such amounts accruing on or attributable to such Loans for the period from and after the date of such purchase shall not be required paid when due by the Borrower to make the Administrative Agent for the benefit of the purchasing Lenders. If prior to purchasing its Percentage of a Swingline Loan one of the events described in Section 10.10 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 Swingline Loan in an amount equal to refinance an outstanding its Percentage of such Swingline Loan. Within From and after the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request date of each Lender’s purchase of its participating interest in a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise if the Swingline Lender of receive any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of fundspayment on account thereof, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender will distribute to such Lender its participating interest in such amount (orappropriately adjusted, in the case of a Swingline Loan made interest payments, to finance reflect the reimbursement period of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in time during which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of participating interest was outstanding and funded); provided, however, that in the event that such payment was received by the Swingline Loan or Loans. Each Lender hereby absolutely Lenders and unconditionally agrees, upon receipt of notice as provided above, is required to pay be returned to the Administrative AgentBorrower, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay will return to the Swingline Lenders any portion thereof previously distributed by the Swingline Lender the amounts to it. If any Revolving Lender fails to so received by it from the Lenders. The Administrative Agent shall notify the Borrower purchase its Percentage of any participations in any Swingline Loan acquired pursuant Loan, such Lender shall be deemed to this paragraph, and thereafter payments in respect of such be a Defaulting Lender hereunder. No Swingline Loan shall be made to the Administrative Agent outstanding for more than five (5) days at a time and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph Loans shall not relieve the Borrower be outstanding for more than a total of ten (10) days during any default in the payment thereofmonth.
Appears in 1 contract
Sources: Unsecured Revolving Credit Agreement (First Industrial Realty Trust Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the each Borrower from time to time during the period from and including the Closing Date and prior to the Availability Period, Termination Date for such Borrower in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of the outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $40,000,000, (ii) the Swingline Lender’s Aggregate Outstanding Credit Exposure exceeding the Aggregate Commitment, (iii) the Revolving Credit Exposure of any Lender exceeding its CommitmentCommitment or (iv) the Borrower Credit Exposure of any Borrower exceeding the Borrower Sublimit for such Borrower; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, each Borrower may, severally and not jointly with the Borrower may other Borrowers, borrow, prepay and reborrow Swingline LoansLoans at any time prior to the Availability Termination Date for such Borrower.
(b) To request a Swingline Loan, the a Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon3:00 p.m., New York City time, on the day of a the proposed Swingline Loan. Each such telephonic notice shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the Agent of an executed written notice. Each such telephonic and written notice shall specify the requested date (which shall be a Business Day) of the Swingline Loan, and the amount of the requested Swingline Loan and whether such Borrowing is the location and number of the account of the Borrower to which funds are to be disbursed or, in the case of any Swingline Loan requested to finance the reimbursement of an ABR Borrowing or LC Disbursement as provided in Section 2.6(e), the identity of the Issuing Bank that has made such LC Disbursement. Promptly following the receipt of a LMIR Borrowing. If no election as to notice in accordance with this Section, the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing Agent shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrowerdetails thereof. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of fundsto the account specified in such notice or to the applicable Issuing Bank, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loanmay be.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of the Swingline Loans in which the Lenders will be required to participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage Pro Rata Share of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agreesagrees to pay, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage Pro Rata Share of such Swingline Loan or Loans. Each Lender acknowledges and agrees that, in making any Swingline Loan, the Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the applicable Borrower deemed made pursuant to Section 4.2, unless, at least one Business Day prior to the time such Swingline Loan was made, the Required Lenders shall have notified the Swingline Lender (with a copy to the 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 4.2.1 or 4.2.2 would not be satisfied if such Swingline Loan were then made (it being understood and agreed that, in the event the Swingline Lender shall have received any such notice, it shall have no obligation to make any Swingline Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist). Each Lender further acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Unmatured Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.11 with respect to Loans made by such Lender (and Section 2.06 2.11 shall apply, mutatis mutandis, to the payment obligations of the LendersLenders pursuant to this paragraph), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the applicable Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the applicable Borrower (or other party Person on behalf of the such Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the applicable Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the applicable Borrower of any default in the payment thereofits obligation to repay such Swingline Loan.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make (x) U.S. Swingline Loans to the Company from time to time during the Availability Period and (y) European Swingline Loans to the Company or the European Borrower from time to time during the Availability Period; provided that no such Swingline Loan under any Revolving Credit Facility shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by under such Revolving Credit Facility would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Loan Sublimit of such Revolving Credit Facility or (ii) the Swingline Lender’s aggregate Revolving Credit Exposure exceeding its CommitmentExposures under such Revolving Credit Facility would exceed the total Revolving Commitments under such Revolving Credit Facility; provided further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Company and/or the European Borrower, as applicable, may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Applicable Participant shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Applicable Participant’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower Company and/or the European Borrower, as applicable, shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline LoanLoan Notice. Each Swingline Loan Notice shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 and (ii) the requested date (borrowing date, which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the such Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the applicable Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Applicable Participant make a Base Rate Loan to such Borrower in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding under the Revolving Credit Facility under which such Swingline Loan or was made. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. Each The Swingline Lender hereby absolutely and unconditionally agrees, upon receipt shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice as provided above, to pay to the Administrative Agent, . Each Applicable Participant shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Applicable Participants fund its risk participation in the relevant Swingline Loan and such Applicable Participant’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Applicable Participant fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Applicable Participant pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Applicable Participant (acting through the Administrative Agent), on demand, such Lenderamount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Applicable Participant pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Applicable Participant’s Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Applicable Percentage of such Swingline Loan or Loans. Participant (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Applicable Participant’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, any Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or an Event of Default (C) any other occurrence, event or condition, whether or not similar to any reduction or termination of the Commitmentsforegoing; provided, and however, that each Applicable Participant’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of either Borrower to repay Swingline Loans to such Borrower, together with interest as provided herein.
(i) At any time after any Applicable Participant has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment shall be made without any offseton account of such Swingline Loan, abatement, withholding or reduction whatsoever. Each the Swingline Lender shall comply with will distribute to such Applicable Participant its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Applicable Participant shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Applicable Participants under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing each Borrower of any participations in any for interest on the Swingline Loans to such Borrower. Until each Applicable Participant funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Applicable Participant’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be solely for the account of the Swingline Lender.
(f) Each Borrower shall make all payments of principal and interest in respect of the Swingline Loans made to the Administrative Agent and not such Borrower directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Commitment (notwithstanding the fact that such Swingline Loans, when aggregated with the Swingline Lender’s outstanding Revolving Loans, may exceed the Swingline Commitment Lender’s Commitment) or (ii) the Swingline Lender’s sum of the total Revolving Credit Exposure Exposures exceeding its Commitmentthe total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline LoanLoans, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon4:00 p.m., New York City time, on the day of a the proposed Swingline LoanLoans. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is confirmed promptly by hand delivery or electronic communication in PDF format to be an ABR Borrowing ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or a LMIR Borrowing. If no election as facsimile to the Type Administrative Agent of Swingline a written Borrowing is specified, then Request in the requested Swingline Borrowing shall be an ABR Borrowingform attached hereto as Exhibit E or in another form approved by the Administrative Agent and signed by the Borrower. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each fund the requested Swingline Loan available to the Borrower Loans by means of a credit or wire transfer of funds, as applicable, immediately available funds to an the account of the Borrower Administrative Agent most recently designated by the Borrower in writing it for such purpose by notice to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 5:00 p.m., New York City time, on the requested date of such Swingline Loan; provided that if the Borrower notifies the Administrative Agent of such request between 9:00 a.m., New York City time, and 4:00 p.m., New York City time, on any applicable Business Day, the Swingline Lender will use commercially reasonable efforts to fund the requested Swingline Loan in the manner described above within one hour of such notice. The Administrative Agent will make such Swingline Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrower’s request.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.07 with respect to Loans made by such Lender (and Section 2.06 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender Administrative Agent from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan Loans after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) [Reserved].
(e) Notwithstanding any other provision hereof, the Borrower and the Swingline Lender may agree from time to time upon mutually satisfactory separate arrangements for the borrowing and funding of Swingline Loans. Such provisions may include, among other things, the making of Swingline Loans through disbursements made from an automatic sweep account, which Swingline Loans shall be deemed to be made upon the making of such disbursements.
Appears in 1 contract
Swingline Loans. For the avoidance of doubt, Borrower hereby expressly acknowledges and agrees that notwithstanding any provisions herein with respect to Swingline Loans and the making thereof, Borrower shall at no time have any right to request any Swingline Loans hereunder, Swingline Lender shall at no time have any obligation to make any Swingline Loans hereunder, at no time shall any Swingline Loans be made hereunder, and in express reliance thereon, Administrative Agent, Swingline Lender and each Lender is entering into this Agreement.
(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Revolving Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment $0 or (ii) the Swingline Lender’s Revolving total Credit Exposure Exposures exceeding its Commitmentthe total Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by facsimile or e-mail or facsimileelectronic transmission), e-mail substantially in the form of Exhibit A-1 attached hereto or facsimilesuch other form as may be approved by the Swingline Lender, executed by the Borrower), not later than 2:00 p.m. (or 12:00 noonp.m. in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)), New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the Borrower, the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the Borrower designated by the Borrower in writing to with the Swingline Lender by 3:00 p.m (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) Bank by 3:00 1:00 p.m.), New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.12 with respect to Loans made by such Lender (and Section 2.06 2.12 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) At any time that there shall exist a Defaulting Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral to secure any Fronting Exposure as may be required pursuant to Section 2.05(j)(iii) hereof.
Appears in 1 contract
Swingline Loans. (ai) Subject to the terms and conditions set forth hereinof this Agreement, the Swingline Lender agrees to make Swingline Loans to the Company or any Subsidiary Borrower from time to time on any Domestic Business Day (if such Swingline Loan is denominated in Dollars) or on any Eurocurrency Business Day (if such Swingline Loan is denominated in an Agreed Currency other than Dollars) during the Availability Period, period on and after the Effective Date to but excluding the Termination Date in an aggregate principal amount at any time outstanding that will not result Agreed Currency in (i) the aggregate principal Dollar Amount not to exceed the lesser of (A) $50,000,000 (the "Swingline Amount") and (B) the unused portion of the Aggregate Commitment as of such Business Day, provided, however that Swingline Loans to Subsidiary Borrowers shall not be made in Dollars. Each Swingline Loan shall be in a principal amount of outstanding Swingline Loans made by $1,000,000 or any integral multiple thereof, or if denominated in an Agreed Currency other than Dollars, the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Approximate Equivalent Amount or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that such other minimum amounts and multiples as the Swingline Lender shall not determine. Each Bank's Commitment shall be required deemed utilized by an amount equal to make a such Bank's Commitment Percentage of each Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent for purposes of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, determining the amount of the requested Loans required to be made by such Bank. Each Swingline Loan and whether shall bear interest at the Floating Rate or such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election other rate as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise agreed between the relevant Borrower and the Swingline Lender of any at the time such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a is made. If any Swingline Loan made to finance in Dollars is not repaid by the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, Company on the requested date when due, each Bank will make available a Borrowing the proceeds of such which will be used to repay the Swingline Loan.
(cii) The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded by a Borrowing in Dollars to the Company from the Banks, and upon written notice given thereof by the Swingline Lender to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeAgent, the Administrative Agent will give notice thereof Banks, the relevant Borrower and the Company, the Company shall be deemed to each Lender, specifying have requested a Borrowing in such notice such Lender’s Applicable Percentage an amount equal to the Dollar Amount of such Swingline Loan or Loansand such Borrowing shall be made to refund such Swingline Loan. Each Lender hereby absolutely and unconditionally agreesAny Swingline Loan outstanding in an Agreed Currency other than Dollars shall, upon receipt the giving of such notice as provided above, to pay to the Administrative Agent, for the account of by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Equivalent Amount of each such Lender’s Applicable Swingline Loan determined as of the date of such conversion. Each Bank shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation Borrowing or, if applicable, to acquire participations purchase a participation interest in the Swingline Loans pursuant to this paragraph is absolute Section 2.01(b)(iii) and unconditional and such obligation shall not be affected by any circumstance whatsoevercircumstance, including, without limitation, (A) any set-off, counterclaim, recoupment, defense or other right which such Bank has or may have against the Swingline Lender, the Agent or the Company or any of its Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 3.02, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence and or continuance of a Default Default, subject to Section 2.01(b)(iii); (C) any adverse change in the condition (financial or an Event otherwise) of Default the Company or any reduction of its Subsidiaries; (D) any breach of this Agreement by the Company or termination any Subsidiary Borrower or any other Bank; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the Commitmentsforegoing (including without limitation the Company's failure to satisfy any conditions contained in Article IV or any other provision of this Agreement, and so long as the Swingline Lender did not have any specific written notice from the Company or a Lender that each the conditions to making a Swingline Loan were not satisfied at the time such payment shall be made Swingline Loan was made).
(iii) If, for any reason (including without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer limitation as a result of immediately available funds, in the same manner as provided in Section 2.06 occurrence of a Default with respect to the Company pursuant to Sections 6.01(g) or (h)) Loans may not be made by the Banks as described in Section 2.01(b)(ii), then (A) the relevant Borrower agrees that each Swingline Loan not paid pursuant to Section 2.01(b)(ii) shall bear interest, payable on demand by the Swingline Lender, at the rate per annum equal to the sum of 2% plus the Floating Rate, (B) the Borrowers agree that each Swingline Loan outstanding in an Agreed Currency other than Dollars shall be immediately and automatically converted to and redenominated in Dollars equal to the Equivalent Amount of such Lender Swingline Loan determined as of the date of such conversion, and (C) effective on the date each such Loan would otherwise have been made, each Bank severally agrees that it shall unconditionally and Section 2.06 shall applyirrevocably, mutatis mutandiswithout regard to the occurrence of any Default, in lieu of deemed disbursement of loans, to the payment obligations extent of such Bank's Commitment, purchase a participation interest in the Swingline Loans by paying its Commitment Percentage thereof, provided, however, that no Bank shall be obligated to purchase such participation in a Swingline Loan made by the Swingline Lender when it had actual knowledge of the Lenders)existence of a Default. Each Bank will immediately transfer to the Swingline Lender, in same day funds, the amount of its participation. Each Bank shall share based on its Commitment Percentage in any interest which accrues thereon and in all repayments thereof. If and to the extent that any Bank shall not have so made the amount of such participating interest available to the Swingline Lender, such Bank and the Administrative Agent shall promptly Company severally agree to pay to the Swingline Lender the amounts so received by it forthwith on demand such amount together with interest thereon, for each day from the Lenders. The Administrative Agent shall notify the Borrower date of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received demand by the Swingline Lender from until the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any date such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and amount is paid to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default at (x) in the payment thereofcase of the Company, at the interest rate specified above and (y) in the case of such Bank, the Federal Funds Effective Rate for the first three days and at the interest rate specified above thereafter.
Appears in 1 contract
Sources: Credit Agreement (Masco Corp /De/)
Swingline Loans. (a) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower make, at any time and from time to time during on or after the Availability PeriodInitial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans to the U.S. Borrower (each, a “Swingline Loan”), which Swingline Loans:
(i) shall be made and maintained in an Dollars;
(ii) shall be made and maintained as Base Rate Loans;
(iii) may be repaid and reborrowed in accordance with the provisions hereof;
(iv) shall not be made (and shall not be required to be made) if the making of same would cause the Aggregate Dollar Facility RL Exposure (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) to exceed the Total Dollar Facility Revolving Loan Commitment as then in effect; and
(v) shall not exceed in aggregate principal amount at any time outstanding that will not result outstanding, the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(f), (ix) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the Swingline Lender shall not be required obligated to make any Swingline Loans at a Swingline Loan time when a Lender Default exists with respect to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise any Dollar Facility RL Lender unless the Swingline Lender has entered into arrangements satisfactory to it to eliminate the Swingline Lender’s risk with respect to the Defaulting Lender’s or Defaulting Lenders’ refunding obligations (through the requirement that Mandatory Dollar Facility RL Borrowings be made from time to time) in respect of any such notice received from Swingline Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting Lenders’ Dollar Facility RL Percentages of the Borrower. The outstanding Swingline Loans and (y) the Swingline Lender shall not make each any Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by after it has received written notice given to from any Borrower or the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Required Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees stating that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, exists and that each is continuing until such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner time as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so shall have received by it written notice (A) of rescission of all such notices from the Lenders. The Administrative Agent shall notify party or parties originally delivering such notice or notices or (B) of the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect waiver of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received Default or Event of Default by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofRequired Lenders.
Appears in 1 contract
Sources: Credit Agreement (Owens Corning)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.05, to make loans (each such loan, a “Swingline Loans Loan”) to the Borrower Borrowers from time to time on any Business Day during the Availability Period, Period in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit, notwithstanding the fact that will not result in such Swingline Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Loans and L/C Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Commitment; provided, however, that after giving effect to any Swingline Loan, (i) the aggregate principal amount of outstanding Swingline Loans made by Total Outstandings shall not exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Maximum Revolving Credit and (ii) the Swingline aggregate Outstanding Amount of the Loans of any Lender at such time, plus such Lender’s Revolving Credit Exposure exceeding its 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 Swingline Loans at such time shall not exceed such Lender’s Commitment; , and provided further that the Swingline Lender Borrowers shall not be required to make a use the proceeds of any Swingline Loan to refinance an any outstanding Swingline Loan. Within the foregoing limits limits, and subject to the other terms and conditions set forth hereinhereof, the Borrower Borrowers may borrowborrow under this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05. Each Swingline Loans.
(b) To request Loan shall be a Base Rate Loan. Immediately upon the making of a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice each Lender shall be irrevocable deemed to, and shall specify the requested date (which shall be a Business Day) of the Swingline Loanhereby irrevocably and unconditionally agrees to, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise purchase from the Swingline Lender of any a risk participation in such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available in an amount equal to the Borrower by means product of a credit or wire transfer of funds, as applicable, to an account of such Lender’s Applicable Percentage times the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date amount of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Warrior Met Coal, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the each Swingline Lender agrees to make Swingline Loans to the Borrower Borrowers from time to time during the Availability Period; provided, in an aggregate principal amount at that after giving effect to the making of any time outstanding that will not result in Swingline Loan by any Swingline Lender, (i) the aggregate principal amount of outstanding Swingline Loans made by the of such Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or shall not exceed $50,000,000, (ii) the Swingline Lender’s Revolving aggregate Credit Exposure exceeding of such Swingline Lender and its Affiliates shall not exceed the aggregate Commitments of such Swingline Lender and its Affiliates and (iii) the total Credit Exposures shall not exceed the Total Commitment; provided provided, that the no Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline LoanLoan from any Swingline Lender, the Company (on behalf of itself or, if applicable, the relevant Borrower) or the relevant Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon2:00 p.m., New York City time, on the day of a such proposed Swingline Loan. Each such telephonic request shall be confirmed promptly by facsimile or other electronic transmission to the Administrative Agent. Each such notice shall be irrevocable and shall specify the name of the relevant Borrower, the name of the relevant Swingline Lender, the requested date of the Swingline Loan (which shall be a Business Day) of the Swingline Loan), the amount of the requested Swingline Loan and whether the location and number of such Borrowing is Borrower’s account to which funds are to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowingdisbursed. The Administrative Agent will promptly advise the relevant Swingline Lender of any such notice received from the Company or the relevant Borrower. The Each applicable Swingline Lender shall make each Swingline Loan available to the relevant Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the such Borrower designated by the Borrower in writing to maintained with the Swingline Lender Lenders (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(f), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanLender).
(c) The Each Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 noon, New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans outstandingmade by such Swingline Lender. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline LenderLenders, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph clause (c) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph clause (c) by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.07 with respect to Loans made by such Lender (and Section 2.06 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower Company of any participations in any Swingline Loan acquired pursuant to this paragraphclause (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline LenderLenders. Any amounts received by the any Swingline Lender from the relevant Borrower (or other party on behalf of the relevant Borrower) in respect of a Swingline Loan after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph clause (c) and to the Swingline LenderLenders, as their interests may appear; provided provided, that any such payment so remitted shall be repaid to the Swingline Lender Lenders or to the Administrative Agent, as applicablethe case may be, if and to the extent such payment is required to be refunded to the any Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph clause (c) shall not relieve the Borrower Borrowers of any default in the payment thereof.
(d) The Administrative Agent, on behalf of the Swingline Lenders, shall request settlement (a “Settlement”) with the Lenders on at least a weekly basis or on any earlier date that the Administrative Agent elects, by notifying the Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon, New York City time on the date of such requested Settlement (the “Settlement Date”). Each Lender (other than the Swingline Lenders, in the case of the Swingline Loans) shall transfer the amount of such Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to such account of the Administrative Agent as the Administrative Agent may designate by not later than 2:00 p.m., New York City time, on such Settlement Date. Settlements may occur during the existence of a Default and whether or not the applicable conditions precedent set forth in Section 4.02 have then been satisfied. Such amounts transferred to the Administrative Agent shall be applied against the amounts of each Swingline Lender’s Swingline Loans and, together with each Swingline Lender’s Applicable Percentage of such Swingline Loan, shall constitute Revolving Loans of such Lenders, respectively. If any such amount is not transferred to the Administrative Agent by any Lender on such Settlement Date, the Swingline Lenders shall be entitled to recover such amount on demand from such Lender together with interest thereon as specified in Section 2.07.
(e) All communications with the Lenders on behalf of the Swingline Lenders and the payment of all amounts owing by the Lenders to the Swingline Lenders, shall be made solely through the Administrative Agent, and MSSF (in its capacity as a Swingline Lender) shall have no obligation to communicate with any other Lender (other than the Administrative Agent), or to monitor any payments with respect to any Swingline Loans made by MSSF.
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to Lender, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.6, shall make Swingline Loans to the Borrower from time to time in Dollars during the Availability Revolving Commitment Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $70,000,000, (ii) the Swingline Lender’s aggregate Revolving Extensions of Credit Exposure exceeding its Commitmentthe Availability then in effect; provided provided, that the Swingline Lender shall not be required to make a Swingline Loan (i) to refinance an outstanding Swingline LoanLoan or (ii) if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by making such Swingline Loan may have, Fronting Exposure. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay repay and reborrow Swingline Loans. Each Swingline Loan shall be an ABR Loan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone (promptly confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (y) the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan Loan, and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing(z) proper wire instructions for the same. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Revolving Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.6(a), or (B) that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender shall make each Swingline Loan available to the Borrower at its office by means of a credit or wire transfer of funds, as applicable, to an crediting the account of the Borrower designated by on the Borrower in writing to books of the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) immediately available funds by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. Swingline Loans shall be made in an amount equal to $100,000 or a whole multiple of $100,000 in excess thereof.
(c) The Borrower shall have the right at any time and from time to time to repay, without premium or penalty, any Swingline Loan, in whole or in part, upon giving written or telecopy notice (or telephone notice promptly confirmed by written or telecopy notice) to the Swingline Lender and to the Administrative Agent before 3:00 p.m., New York City time on the date of repayment at the Swingline Lender’s address for notices specified in the Swingline Lender’s administrative questionnaire. All principal payments of Swingline Loans shall be accompanied by accrued interest on the principal amount being repaid to the date of payment.
(d) The Swingline Lender may and, at any time there shall be Swingline Loan outstanding for more than seven days, the Swingline Lender shall by written notice given to the Administrative Agent not later than 10:00 a.m.3:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Revolving Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving Lender’s Applicable Revolving Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverwhatsoever (provided, that such payment shall not cause such Revolving Lender’s Revolving Extensions of Credit to exceed such Revolving Lender’s Revolving Commitment). Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 3.4 with respect to Loans made by such Lender (and Section 2.06 3.4 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(e) If the Revolving Termination Date applicable to a Tranche shall have occurred at a time when other Tranches will remain outstanding, then on such Revolving Termination Date all then outstanding Swingline Loans with respect to such maturing Tranche shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such Revolving Termination Date); provided, that, if on the occurrence of such Revolving Termination Date (after giving effect to any repayments of Revolving Loans and any reallocation as contemplated in Section 3.4(d)), (i) there shall exist sufficient unutilized Revolving Commitments that will remain outstanding after the date thereof and (ii) the conditions set forth in Sections 5.2(a) and 5.2(b) shall be satisfied at such time so that the respective outstanding Swingline Loans could be incurred pursuant to such Revolving Commitments which will remain in effect after the occurrence of such Revolving Termination Date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and the same shall be deemed to have been incurred solely pursuant to such Revolving Commitments and such Swingline Loans shall not be so required to be repaid in full on such Revolving Termination Date.
(f) Notwithstanding anything to the contrary contained in this Agreement, in the event a Revolving Lender becomes a Defaulting Lender, then such Defaulting Lender’s Revolving Percentage in all outstanding Swingline Loans will automatically be reallocated among the Revolving Lenders that are Non-Defaulting Lenders pro rata in accordance with each Non-Defaulting Lender’s Revolving Percentage (calculated without regard to the Revolving Commitment of the Defaulting Lender), but only to the extent that such reallocation does not cause the Revolving Extensions of Credit of any Non-Defaulting Lender to exceed the Revolving Commitment of such Non-Defaulting Lender. If such reallocation cannot, or can only partially, be effected, the Borrower shall, within five Business Days after written notice from the Administrative Agent or such longer period as the Administrative Agent shall agree, pay to the Administrative Agent an amount of cash equal to such Defaulting Lender’s Revolving Percentage (calculated as in effect immediately prior to it becoming a Defaulting Lender) of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to the first sentence of this Section 2.6(f)) to be applied to the repayment of such Swingline Loans. So long as there is a Defaulting Lender, the Swingline Lender shall not be required to lend any Swingline Loans if the sum of, without duplication, the Non-Defaulting Lenders’ Revolving Percentages of the outstanding Revolving Loans, L/C Obligations, Local Loans and Acceptances, and their participations in Swingline Loans after giving effect to any such requested Swingline Loans would exceed the aggregate Revolving Commitments of the Non-Defaulting Lenders (such excess, “Fronting Exposure”).
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Revlon Inc /De/)
Swingline Loans. (a) Subject The Administrative Agent, the Swingline Lender and the Revolving Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower Representative requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the Revolving Lenders and in the amount requested, same day funds to the applicable Borrower on the date of the applicable Borrowing to the applicable Funding Account (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05(a) is referred to in this Agreement as a “Swingline Loan”), with settlement among the Swingline Lender and the Revolving Lenders as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Swingline Loan shall be subject to all the terms and conditions set forth hereinapplicable to other ABR Loans funded by the Revolving Lenders, except that all payments thereon shall be payable to the Swingline Lender agrees to make solely for its own account. The aggregate amount of Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount outstanding at any time outstanding that will shall not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the exceed $50,000,000. The Swingline Lender shall not be required to make a any Swingline Loan if the requested Swingline Loan exceeds Availability (before or after giving effect to refinance an outstanding such Swingline Loan). Within All Swingline Loans shall be ABR Borrowings; provided that, from and after the foregoing limits and subject to the terms and conditions set forth hereinSettlement of any Swingline Loans with Revolving Lenders in accordance with Section 2.05(c), the Borrower Revolving Loans of the Revolving Lenders resulting from such Settlement consisting of ABR Borrowings may borrow, prepay and reborrow Swingline Loansbe converted to Term Benchmark Borrowings in accordance with Section 2.08 hereof.
(b) To request Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice each Revolving Lender shall be irrevocable deemed, without further action by any party hereto, to have unconditionally and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise irrevocably purchased from the Swingline Lender or the Administrative Agent, as the case may be, without recourse or warranty, an undivided interest and participation in such Swingline Loan in proportion to its Applicable Percentage of any such notice received from the BorrowerRevolving Commitment. The Swingline Lender shall make each or the Administrative Agent may, at any time, require the Revolving Lenders to fund their participations. From and after the date, if any, on which any Revolving Lender is required to fund its participation in any Swingline Loan available purchased hereunder, the Administrative Agent shall promptly distribute to the Borrower by means such Lender, such Lender’s Applicable Percentage of a credit or wire transfer all payments of funds, as applicable, to an account principal and interest and all proceeds of the Borrower designated Collateral received by the Borrower Administrative Agent in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date respect of such Swingline Loan.
(c) The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a “Settlement”) with the Revolving Lenders on at least a weekly basis or on any date that the Administrative Agent elects, by notifying the Revolving Lenders of such requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon Chicago time on the date of such requested Settlement (the “Settlement Date”). Each Revolving Lender (other than the Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Revolving Lender’s Applicable Percentage of the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may by written notice given designate, not later than 2:00 p.m., Chicago time, on such Settlement Date. Settlements may occur during the existence of a Default and whether or not the applicable conditions precedent set forth in Section 4.02 have then been satisfied. Such amounts transferred to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require shall be applied against the Lenders to acquire participations on such Business Day in all or a portion amounts of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Lender’s Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeand, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such together with Swingline Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agreesLoan, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage shall constitute Revolving Loans of such Swingline Loan or LoansRevolving Lenders, respectively. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph If any such amount is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made transferred to the Administrative Agent and not to the Swingline Lender. Any amounts received by any Revolving Lender on such Settlement Date, the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted entitled to the Administrative Agent; any recover from such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline LenderLender on demand such amount, together with interest thereon, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations specified in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofSection 2.07.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make Swingline Loans to the Borrower Borrowers from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Loan Sublimit or (ii) the Swingline Lender’s aggregate Revolving Credit Exposure exceeding its CommitmentExposures would exceed the total Revolving Commitments; provided provided, further, that the Swingline Lender shall not be required to make a any Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, Loan the applicable Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loanand shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 and (ii) the requested date (borrowing date, which shall be a Business Day) . Each such telephonic notice must be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a written Swingline Loan Notice, appropriately completed and signed by a Responsible Officer of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowingapplicable Borrower. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the applicable Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the applicable Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Sections 2.02 and 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, . Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and such Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrowers or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default or an Event of Default (C) any other occurrence, event or condition, whether or not similar to any reduction or termination of the Commitmentsforegoing; provided, and however, that each Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment shall be made without any offseton account of such Swingline Loan, abatement, withholding or reduction whatsoever. Each the Swingline Lender shall comply with will distribute to such Revolving Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Revolving Lender shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the applicable Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent account of the Swingline Lender.
(f) The applicable Borrower(s) shall make all payments of principal and not interest in respect of the Swingline Loans directly to the Swingline Lender. Any amounts received by .
(g) If the Swingline Lender from the Borrower (or other party on behalf of the Borrower) maturity date shall have occurred in respect of any tranche of Revolving Commitments at a time when a tranche or tranches of Extended Revolving Commitments is or are in effect with a longer maturity date, then on the earliest occurring maturity date all then outstanding Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Lender or Loans as a result of the occurrence of such maturity date); provided, however, that if on the occurrence of such earliest maturity date (after giving effect to any repayments of Revolving Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.05(j)), there shall exist sufficient unutilized Extended Revolving Commitments so that the respective outstanding Swingline Loans could be incurred pursuant the Extended Revolving Commitments which will remain in effect after the occurrence of such maturity date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and same shall be deemed to have been incurred solely pursuant to the Administrative Agentrelevant Extended Revolving Commitments, as applicable, if and to the extent such payment is Swingline Loans shall not be so required to be refunded to the Borrower for any reason. The purchase of participations repaid in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereoffull on such earliest maturity date.
Appears in 1 contract
Sources: Credit Agreement (Genpact LTD)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the Swingline Lender agrees to make swingline loans (each, a “Swingline Loans Loan” and collectively, the “Swingline Loans”) to the Borrower from time to time during the Availability Period, Revolving Credit Commitment Period in an aggregate principal amount at any time outstanding accordance with the procedures set forth in this Section 2.04; provided that will not result in (i) the aggregate principal amount of outstanding all Swingline Loans made by shall not exceed $25,000,000 (the “Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Sublimit”) at any one time outstanding, (ii) the principal amount of any borrowing of Swingline Lender’s Loans may not exceed the aggregate amount of the then Available Revolving Credit Commitments immediately prior to such borrowing or result in the Total Revolving Credit Exposure then outstanding exceeding its Commitment; provided that the Total Revolving Credit Commitments then in effect, and (iii) in no event may Swingline Lender Loans be borrowed hereunder if a Default shall not have occurred and be required continuing. Amounts borrowed under this Section 2.04 may be repaid and, up to make a but excluding the Revolving Credit Maturity Date, reborrowed. All Swingline Loan to refinance an outstanding Swingline LoanLoans shall at all times be ABR Loans. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify give the Administrative Agent notice of such request any Swingline Loan requested hereunder (which notice must be received by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noonthe Administrative Agent prior to 11:00 a.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall requested Borrowing Date) specifying the amount to be irrevocable borrowed and shall specify the requested date (which shall be a Business Day) Borrowing Date. Upon receipt of the Swingline Loansuch notice, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will shall promptly advise notify the Swingline Lender of any the aggregate amount of such borrowing. Not later than 2:00 p.m., New York City time, on the Borrowing Date specified in such notice received from the Borrower. The Swingline Lender shall make each such Swingline Loan available to the Administrative Agent for the account of Borrower at the New York office of the Administrative Agent specified in Section 9.01 in Dollars immediately available to the Administrative Agent. Amounts so received by the Administrative Agent shall promptly be made available to Borrower by means of a credit or wire transfer of funds, as applicable, to an the Administrative Agent crediting the account of Borrower on the Borrower designated books of such office with the amount made available to the Administrative Agent by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.06(e), by remittance to the Issuing Bank) and in like funds as received by 3:00 p.m., New York City time, on the requested date Administrative Agent. Each Borrowing pursuant to this Section 2.04 shall be in a minimum principal amount of such Swingline Loan$500,000 or an integral multiple of $100,000 in excess thereof.
(cb) The Notwithstanding the occurrence of any Default or noncompliance with the conditions precedent set forth in Article IV or the minimum borrowing amounts specified in Section 2.02, if any Swingline Lender may by written notice given to the Administrative Agent not later than Loan shall remain outstanding at 10:00 a.m., New York City time, on any the seventh Business Day require following the Lenders to acquire participations Borrowing Date thereof and if by such time on such seventh Business Day the Administrative Agent shall have received neither (i) a notice of borrowing delivered by Borrower pursuant to Section 2.02 requesting that Revolving Loans be made pursuant to Section 2.01 on the immediately succeeding Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify an amount at least equal to the aggregate principal amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of nor (ii) any other notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made satisfactory to the Administrative Agent and not indicating Borrower’s intent to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a repay such Swingline Loan after receipt by on the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by immediately succeeding Business Day with funds obtained from other sources, the Administrative Agent shall be promptly remitted by the Administrative Agent deemed to the Lenders that shall have made their payments received a notice from Borrower pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.to
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, including, without limitation, Section 2.16, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time Borrower, during the Availability Periodperiod from the Effective Date to, but excluding, the Swingline Maturity Date, in an aggregate principal amount at any one time outstanding that will up to, but not result in exceeding, the least of (i) $90,000,000, (ii) the aggregate amount of the Revolving Commitments of the applicable Swingline Lender then available for disbursement pursuant to the terms and conditions of this Agreement, as such amount may be increased or decreased from time to time in accordance with the terms hereof, and (iii) the aggregate amount of the Revolving Commitments of the Revolving Lenders then available for disbursement pursuant to the terms and conditions of this Agreement (the least such amount, the “Swingline Commitment Amount”). In addition to, and not in limitations of, the foregoing limitations on Swingline Loans, no single Swingline Lender shall be required to make any Swingline Loan if doing so would cause the outstanding amount of Swingline Loans made by such Swingline Lender to exceed $45,000,000, unless agreed by such Swingline Lender. If at any time the aggregate principal amount of outstanding the Swingline Loans made by outstanding at such time exceeds the Swingline Lender exceeding Commitment Amount in effect at such time, the Borrower shall immediately pay the Administrative Agent for the account of the applicable Swingline Lender’s Swingline Commitment or (iiLender(s) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loanamount of such excess. Within the foregoing limits and subject Subject to the terms and conditions set forth hereinof this Agreement, the Borrower may borrow, prepay repay and reborrow re-borrow Swingline Loans.
Loans hereunder. Solely for purposes of calculation of the fee payable under Section 3.5(b), the borrowing of a Swingline Loan shall not constitute usage of any Lender’s Revolving Commitment. For all other purposes, the borrowing of a Swingline Loan shall constitute usage of the Revolving Commitments, in an amount equal to (bi) To request a for each Revolving Lender other than the Swingline Lender making such Swingline Loan, each such Revolving Lender’s Revolving Commitment Percentage, multiplied by the outstanding amount of such Swingline Loan and (ii) for the applicable Swingline Lender making such Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the outstanding amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make (x) U.S. Swingline Loans to the Company from time to time during the Availability Period and (y) European Swingline Loans to the Company, the Original European Borrower, the Additional European Borrower or the Second Additional European Borrower from time to time during the Availability Period; provided that no such Swingline Loan under any Revolving Credit Facility shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by under such Revolving Credit Facility would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Loan Sublimit of such Revolving Credit Facility or (ii) the Swingline Lender’s aggregate Revolving Credit Exposure exceeding its CommitmentExposures under such Revolving Credit Facility would exceed the total Revolving Commitments under such Revolving Credit Facility; provided further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Company, the Original European Borrower, the Additional European Borrower and/or the Second Additional European Borrower, as applicable, may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Applicable Participant shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Applicable Participant’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Company, the Original European Borrower, the Additional European Borrower and/or the Second Additional European Borrower, as applicable, shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (A) telephone or (B) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline LoanLoan Notice. Each Swingline Loan Notice shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000 and (ii) the requested date (borrowing date, which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the such Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the applicable Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Applicable Participant make a Base Rate Loan to such Borrower in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding under the Revolving Credit Facility under which such Swingline Loan or was made. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. Each The Swingline Lender hereby absolutely and unconditionally agrees, upon receipt shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice as provided above, to pay to the Administrative Agent, . Each Applicable Participant shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Applicable Participants fund its risk participation in the relevant Swingline Loan and such Applicable Participant’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Applicable Participant fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Applicable Participant pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Applicable Participant (acting through the Administrative Agent), on demand, such Lenderamount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Applicable Participant pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Applicable Participant’s Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Applicable Percentage of such Swingline Loan or Loans. Participant (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Applicable Participant’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance whatsoevercircumstance, including the occurrence and continuance of a Default (A) any setoff, counterclaim, recoupment, defense or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by other right which such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall may have made their payments pursuant to this paragraph and to against the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender Borrower or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower any other Person for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.reason whatsoever,
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make (x) U.S. Swingline Loans in Dollars to either Borrower from time to time during the Availability Period and (y) Alternative Currency Swingline Loans in Dollars to either Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Loan Sublimit, (ii) the Swingline Lender’s aggregate U.S. Revolving Credit Exposure exceeding its CommitmentExposures would exceed the total U.S. Revolving Commitments or (iii) the aggregate Alternative Currency Revolving Credit Exposures would exceed the total Alternative Currency Revolving Commitments; provided further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each U.S. Revolving Lender, in the case of U.S. Swingline Loans, and each Alternative Currency Revolving Lender, in the case of Alternative Currency Swingline Loans, shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by telephone (confirmed and shall be irrevocable. Each such notice must be received by e-mail or facsimile), e-mail or facsimile, the Swingline Lender and the Administrative Agent not later than 12:00 noon, New York City time, 1:00 p.m. on the day requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, (ii) the requested borrowing date, which shall be a proposed Business Day and (iii) whether such Swingline Loan shall constitute a U.S. Swingline Loan or an Alternative Currency Swingline Loan. Each such telephonic notice shall must be irrevocable confirmed promptly by delivery to the Swingline Lender and shall specify the requested date (which shall be Administrative Agent of a Business Day) written Swingline Loan Notice, appropriately completed and signed by a Responsible Officer of the Swingline Loan, the amount applicable Borrower or of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR BorrowingCompany on behalf of the applicable Borrower. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 3:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the applicable Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 4:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the applicable Borrower (each of which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeLender to so request on its behalf), the Administrative Agent will give notice thereof to that each U.S. Revolving Lender, specifying in such notice the case of U.S. Swingline Loans, or Alternative Currency Revolving Lender, in the case of Alternative Currency Swingline Loans, make a Base Rate Revolving Loan in an amount equal to such Lender’s Applicable Percentage of the amount of the applicable Class of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent. Each U.S. Revolving Lender, in the case of U.S. Swingline Loans, or Alternative Currency Revolving Lender, in the case of Alternative Currency Swingline Loans, shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made an Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the U.S. Revolving Lenders, in the case of U.S. Swingline Loans, or Alternative Currency Revolving Lenders, in the case of Alternative Currency Swingline Loans, fund its risk participation in the relevant Swingline Loan and such Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, either Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or an Event of Default (C) any other occurrence, event or condition, whether or not similar to any reduction or termination of the Commitmentsforegoing; provided, and however, that each Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment shall on account of such Swingline Loan, the Swingline Lender will distribute promptly to such Revolving Lender its Applicable Percentage thereof in the same funds as those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be made without returned by the Swingline Lender under any offsetof the circumstances described in Section 9.08 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available fundseach U.S. Revolving Lender, in the same manner as provided case of U.S. Swingline Loans, or each Alternative Currency Revolving Lender, in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 the case of Alternative Currency Swingline Loans, shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the applicable Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent account of the Swingline Lender.
(f) The Borrowers shall make all payments of principal and not interest in respect of the Swingline Loans directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Credit Agreement (Dole Food Co Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the a Swingline Lender agrees to may make Swingline Loans to the Revolving Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the Dollar Equivalent of the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $100,000,000, (ii) the Swingline Lender’s Aggregate Revolving Credit Exposure exceeding the Aggregate Commitments, (iii) the Swingline Exposure of a Swingline Lender exceeding such Swingline Lender’s Commitment (in its capacity as a Lender) or (iv) the Revolving Credit Exposure of any Lender exceeding its Commitment; provided that . Upon the Borrowing of any Loan under Section 2.01, any outstanding Swingline Loans shall be repaid in full. Swingline Loans with respect to a particular currency shall be made ratably (on a several and not joint basis and calculated based on such Swingline Lender’s Commitment to the total Commitments of all applicable Swingline Lenders of such currency) by each applicable Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loanof such currency. Within the foregoing limits and subject to the terms and conditions set forth herein, the Revolving Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline LoanBorrowing:
(i) in the case of a Swingline Loan denominated in Dollars to the Revolving Borrower, the Revolving Borrower shall notify the Administrative Agent of such request (which request shall be in writing or by telephone confirmed promptly by means of a written Borrowing Request delivered to the Administrative Agent in a form approved by the Administrative agent and signed by the Revolving Borrower (confirmed by e-mail or facsimileit being agreed no obligation to fund any Swingline Loan shall arise until the later of (x) the required funding time set forth herein and (y) 30 minutes after receipt of such written Borrowing Notice), e-mail or facsimileunless otherwise agreed to by the Administrative Agent), not later than 12:00 noon2:30 p.m. (or such other time agreed to by the Revolving Borrower and the applicable Swingline Lender), New York City time, on the day of such proposed Swingline Loan, and
(ii) in the case of any other Swingline Loan, the Revolving Borrower shall notify the Administrative Agent of such request (which request shall be in writing or by telephone confirmed promptly by means of a written Borrowing Request delivered to the Administrative Agent in a form approved by the Administrative agent and signed by the Revolving Borrower (it being agreed no obligation to fund any Swingline Loan shall arise until the later of (x) the required funding time set forth herein and (y) 30 minutes after receipt of such written Borrowing Notice), unless otherwise agreed to by the Administrative Agent), not later than 10:00 a.m. (or such other time agreed to by the Revolving Borrower and such Swingline Lender), Local time, on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (A) the requested date (which shall be a Business Day), (B) of the whether such Swingline LoanLoan is to be denominated in Dollars or a Foreign Currency, (C) the amount of the requested Swingline Loan Borrowing, and whether such (D) in the case of a Swingline Borrowing is denominated in a Foreign Currency, the Interest Period requested to be an ABR applicable thereto, which shall be a period contemplated by clause (b) of the definition of the term "Interest Period." The Administrative Agent shall promptly advise the applicable Swingline Lender or the Affiliate designated by the applicable Swingline Lender for such Swingline Borrowing or of any such notice received. In the case of Swingline Loans that are not denominated in Dollars, the applicable Swingline Lender and the Revolving Borrower shall agree upon the interest rate applicable to such Swingline Loan, provided that if such agreement cannot be reached prior to 10:00 a.m., Local Time, on the day of any proposed Swingline Loan, or, such other time agreed to by the applicable Swingline Lender and the Revolving Borrower, then such Swingline Loan shall not be made. In addition to any other requirements for obtaining a LMIR BorrowingSwingline Loan, the Revolving Borrower shall comply with all applicable legal and regulatory requirements. If no election as Any funding of a Swingline Loan by a Swingline Lender shall be made on the proposed date thereof by 3:30 p.m., Local Time, to the Type account of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingAdministrative Agent. The Administrative Agent will promptly advise the Swingline Lender of any make such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Revolving Borrower by means of a credit or wire transfer of promptly crediting the amounts so received, in like funds, as applicable, to an the account of the Revolving Borrower designated by with the Borrower in writing to the Swingline Lender Administrative Agent (or, in the case of a Swingline Loan Borrowing made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank). The Administrative Agent shall determine the procedures to be followed by the Swingline Lenders to ensure that the Dollar Equivalent of the aggregate principal amount of the Swingline Loans does not exceed the amount permitted by Section 2.04(a) at the time any Swingline Loan is made and to ensure that the amount of Advances made does not exceed the amounts permitted by 3:00 p.m.Section 2.01, New York City timeand each Swingline Lender and the other parties hereto agrees to abide by such procedures. If the Swingline Loans at any time exceed any of the amounts permitted by Section 2.01 or 2.04(a), on the requested date Revolving Borrower shall promptly prepay the relevant Swingline Loans by the amount of such Swingline Loanexcess.
(c) The Each Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.12:00 p.m., New York City timetime (or 11:00 a.m. London time in the case of any Swingline Loan denominated in any Foreign Currency), on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans outstandingLoans. Such notice shall specify the aggregate amount of such Swingline Loans in which the Lenders will participate, and such Swingline Loans, if denominated in Foreign Currency, shall be converted to Dollars and shall bear interest at the Alternate Base Rate plus the Applicable Margin. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s 's Applicable Adjusted Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the applicable Swingline Lender, such Lender’s 's Applicable Adjusted Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its respective obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Revolving Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the applicable Swingline Lender. Any amounts received by the a Swingline Lender from the Revolving Borrower (or other party on behalf of the Revolving Borrower) in respect of a Swingline Loan after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the such Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the such Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Revolving Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Revolving Borrower of any default in the payment thereofthereof and the Revolving Borrower shall reimburse each Lender for any amounts that may be due under Section 2.14, 2.16, 2.19 or any other term of this Agreement.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.04, to make Swingline Loans in Dollars to the Borrower Borrowers from time to time after the IPO Closing Date and during the then-remaining Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Loan Sublimit or (ii) the Swingline Lender’s aggregate Revolving Credit Exposure exceeding its CommitmentExposures would exceed the total Revolving Commitments; provided provided, further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the Revolving Administrative Agent and Swingline Lender of such request by telephone (confirmed by e-mail or facsimile)request, e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loanwhich shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Revolving Administrative Agent not later than 2:00 p.m. New York City time on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be no less than the applicable Minimum Borrowing Amount and (ii) the requested date (borrowing date, which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline LenderLoan Notice, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender will confirm with the Revolving Administrative Agent (by telephone or to in writing) that the Revolving Administrative Agent, as applicableAgent has also received such Swingline Loan Notice and, if and not, the Swingline Lender will notify the Revolving Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from the Revolving Administrative Agent (including at the request of any Lender) prior to 3:00 p.m. New York City time on the extent such payment is required to be refunded to date of the Borrower for any reason. The purchase of participations in a proposed Swingline Loan pursuant Borrowing (A) directing the Swingline Lender not to this paragraph shall not relieve make such Swingline Loan as a result of the Borrower limitations set forth in Section 2.04(a), or (B) that one or more of any default in the payment thereof.applicable conditions specified in
Appears in 1 contract
Sources: Credit Agreement (Dole PLC)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees Lenders severally agree to make Swingline Loans to the any Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the any such Swingline Lender exceeding the aggregate amount of such Swingline Lenders’ total Commitments (in its capacity as a Lender’s Swingline Commitment or ), (ii) the Swingline Lender’s Applicable Revolving Credit Exposure of any Swingline Lender (in its capacity as Lender) exceeding its such Lender’s Commitment, (iii) the sum of the total Revolving Credit Exposures exceeding the total Commitments, (iv) the sum of the total Parent Revolving Credit Exposures exceeding the Parent Sublimit (v) in the case of any Secured Swingline Loan that is a Customer Loan, the aggregate unpaid principal amount of such Secured Swingline Loan exceeding the aggregate Loan Value of the corresponding Customer Pledged Eligible Assets that have been pledged to secure such Swingline Loan or (vi) in the case of any Secured Swingline Loan that is a Firm Loan, the aggregate unpaid principal amount of such Secured Swingline Loan exceeding the aggregate Loan Value of the corresponding Firm Pledged Eligible Assets that have been pledged to secure such Swingline Loan; provided that the Swingline Lender Lenders shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Swingline Loans made to JFC shall be Unsecured Loans. Swingline Loans made to EDJ may be Secured Loans or Unsecured Loans, at EDJ’s election in accordance with clause (b) below, and may be redesignated as a Secured Loan or an Unsecured Loan, as the case may be, in accordance with Section 6 of the Security Agreement and Section 2.12 hereof. Each Secured Swingline Loan made to EDJ shall be either a Customer Loan or a Firm Loan, as designated by EDJ pursuant to clause (b) below. For the avoidance of doubt, Firm Loans may only be secured by Firm Assets. Within the foregoing limits and subject to the terms and conditions set forth herein, the each Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline LoanLoans, the applicable Borrower shall notify submit a written notice to the Administrative Agent of such request by telephone (confirmed by e-mail telecopy or facsimile)electronic mail, e-mail or facsimilenot earlier than 9:00 a.m., New York City time, and not later than 12:00 noon4:00 p.m., New York City time, on the day of a the proposed Swingline LoanLoans. Each such notice shall be irrevocable and shall specify (i) the requested date (which shall be a Business Day), (ii) of the Swingline Loan, the amount of the requested Swingline Loan, (iii) in the case of Swingline Loans requested by EDJ, whether such Swingline Loan will be an Unsecured Swingline Loan or a Secured Swingline Loan, (iv) if a Secured Swingline Loan is requested, whether such Secured Swingline Loan is designated as a Customer Loan or a Firm Loan, (v) if a Secured Swingline Loan is requested, whether the Eligible Assets pledged are designated as Customer Pledged Eligible Assets or Firm Pledged Eligible Assets, (vi) in the case of a Borrowing Request for a Swingline Loan by EDJ, whether such Swingline Loan is an Intraday Swingline Loan or an Overnight Swingline Loan and whether (vii) in the case of a Borrowing by EDJ of a Secured Swingline Loan, the Loan Date. In connection with any request by EDJ for a Secured Swingline Loan, EDJ shall deliver a DTC Instruction to DTC directing DTC to send the Eligible Assets that will be pledged under the Security Agreement in connection with such Secured Swingline Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingPledgee Account. The Administrative Agent will promptly advise the each Swingline Lender of any such notice received from the applicable Borrower. The Each Swingline Lender shall make each fund its ratable portion of the requested Swingline Loan available Loans (such ratable portion to be calculated based upon the Borrower amounts of the Swingline Lenders’ respective Commitments) by means of a credit or wire transfer of funds, as applicable, immediately available funds to an the account of the Borrower Administrative Agent most recently designated by the Borrower in writing it for such purpose by notice to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), Lenders by remittance to the Issuing Bank) by 3:00 5:00 p.m., New York City time, on the requested date of such Swingline Loan; provided that if the applicable Borrower notifies the Administrative Agent of such request between 9:00 a.m., New York City time, and 4:00 p.m., New York City time, on any applicable Business Day, each Swingline Lender will use commercially reasonable efforts to fund its ratable portion of the requested Swingline Loan in the manner described above within one hour of such notice. The Administrative Agent will make such Swingline Loans (or, in the case of a Secured Swingline Borrowing, the portion thereof which is covered by the Loan Value of the Pledged Eligible Assets delivered to secure such Borrowing, as calculated by the Administrative Agent pursuant to Section 2.12) available to the applicable Borrower by promptly (and, subject to the previous parenthetical, in any event, with respect to (x) any Swingline Loans made by the Administrative Agent, in its capacity as Swingline Lender and (y) the proceeds of any Swingline Loans delivered by any other Swingline Lender to the Administrative Agent hereunder by 5:00 p.m., New York City time, on such date, on the date of such proposed Borrowing set forth in the Borrowing Request with respect thereto) crediting the amounts so received, in like funds, to an account of the applicable Borrower designated by the applicable Borrower in the applicable Borrower’s request. Upon DTC’s acting upon the DTC Instruction, the Administrative Agent shall calculate the Loan Value of the Pledged Eligible Assets (which calculation shall be conclusive absent manifest error) and promptly notify EDJ and each Swingline Lender if the requirements of Section 2.05(a)(v) or (vi), as applicable, are not satisfied.
(c) The Each Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline LenderLenders, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.07 with respect to Loans made by such Lender (and Section 2.06 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender Lenders, ratably as among them, the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender Administrative Agent from the applicable Borrower (or other party on behalf of the such Borrower) in respect of a Swingline Loan Loans after receipt by the Swingline Lender Lenders of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline LenderLenders, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender Lenders or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the such Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the applicable Borrower of any default in the payment thereof.
(d) EDJ may, at its option, elect to repay any such Swingline Loans on the date of borrowing thereof upon notice to the Administrative Agent at the time of borrowing, either with cash on hand or with proceeds of Revolving Borrowings made on the same day (any such Swingline Loans, the “Intraday Swingline Loans”).
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans denominated in US Dollars to the any Borrower from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in provided that, after giving effect thereto, (i) the aggregate principal amount of the outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or shall not exceed US$100,000,000, (ii) no Lender s Revolving Exposure shall exceed such Lender s Revolving Commitment and (iii) the Swingline Lender’s Aggregate Revolving Credit Exposure exceeding its Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loanexceed the Aggregate Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the applicable Borrower (or the Company on its behalf) shall notify submit to the Swingline Lender (with a copy to the Administrative Agent of such request Agent) a Swingline Borrowing Request, signed by telephone (confirmed by e-mail or facsimile), e-mail or facsimileits Responsible Officer, not later than 12:00 noon1:00 p.m., New York City time, on the day of a the proposed Swingline Loan. Each such notice Swingline Borrowing Request shall be irrevocable and shall specify the name of the applicable Borrower, the requested date (which shall be a Business Day) of the Swingline Loan, and the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type location and number of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the applicable Borrower designated by the Borrower in writing to the Swingline Lender (which funds are to be disbursed or, in the case of a any Swingline Loan made requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.19(f), by remittance to the identity of the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of Bank that has made such LC Disbursement. The Swingline Lender shall make such Swingline Loan.Loan available to the
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of the Swingline Loans in which the Revolving Lenders will be required to participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Lender s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agreesagrees to pay, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Lender s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that, in making any Swingline Loan, the Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the applicable Borrower deemed made pursuant to Section 4.02, unless, at least two Business Days prior to the time such Swingline Loan was made, the Majority in Interest of the Revolving Lenders shall have notified the Swingline Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not be satisfied if such Swingline Loan were then made (it being understood and agreed that, in the event the Swingline Lender shall have received any such notice, it shall have no obligation to make any Swingline Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist). Each Revolving Lender further acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.04 with respect to Revolving Loans made by such Revolving Lender (and Section 2.06 2.04 shall apply, mutatis mutandis, to the payment obligations of the LendersRevolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the applicable Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the applicable Borrower (or other party Person on behalf of the such Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the applicable Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the applicable Borrower of its obligation to repay such Swingline Loan.
(d) The Swingline Lender may be replaced at any default in time by written agreement among the payment thereof.Company, the Administrative Agent and the successor Swingline Lender. The
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to Lender, in reliance on the agreements of the 2027 Banks set forth in this Section, will make Swingline Loans to the Borrower from time to time during the Availability Periodon any Domestic Business Day, in an aggregate principal amount at any time outstanding that will not result in (i) the Credit Exposure of any 2027 Bank exceeding its Commitment, (ii) the total 2027 Credit Exposures exceeding the total 2027 Commitments or (iii) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its CommitmentSublimit; provided provided, further, that the no Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Each Swingline Loan, Borrowing shall be made upon the Borrower shall notify Borrower’s notice to the Swingline Lender and the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline LoanAgent. Each such notice shall be irrevocable in the form of a written Swingline Borrowing Request, appropriately completed and signed by a Responsible Officer of the Borrower, or may be given by telephone (if promptly confirmed in writing by delivery of such a written Swingline Borrowing Request consistent with such telephonic notice) and must be received by the Swingline Lender and the Administrative Agent not later than 1:00 p.m. (New York City time) on the date of the requested Swingline Borrowing, and such notice shall specify (i) the requested amount to be borrowed, which shall be in a minimum of $5,000,000 or a larger multiple of $1,000,000, and (ii) the date of such Swingline Borrowing (which shall be a Domestic Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing). If no election as Subject to the Type of Swingline Borrowing is specifiedterms and conditions set forth herein, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the Borrower’s account with such Swingline Lender or by wire transfer of funds, as applicable, in accordance with instructions provided to an account of the Borrower designated by the Borrower in writing to (and reasonably acceptable to) the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement L/C Credit Extension as provided in Section 2.05(e2.01(c), by remittance to the respective Issuing Bank) by ), not later than 3:00 p.m., p.m. (New York City time, ) on the requested date of such Swingline Loan.
(ci) Immediately upon the making of a Swingline Loan by the Swingline Lender, and without any further action on the part of the Swingline Lender or the 2027 Banks, the Swingline Lender hereby grants to each Lender, and each 2027 Bank hereby acquires from the Swingline Lender, a participation in such Swingline Loan equal to such 2027 Bank’s Pro Rata Share of the amount of such Swingline Loan. The Swingline Lender may may, by written notice given to the Administrative Agent not later than 10:00 a.m., 1:00 p.m. (New York City time), on any Domestic Business Day Day, require the Lenders 2027 Banks to acquire fund participations on such the Domestic Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders 2027 Banks will participatefund such participations. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender2027 Bank, specifying in such notice such Lender2027 Bank’s Applicable Percentage Pro Rata Share of each such Swingline Loan or LoansLoan. Each Lender 2027 Bank hereby absolutely absolutely, unconditionally and unconditionally irrevocably agrees, upon receipt of notice as provided aboveabove in this paragraph, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender2027 Bank’s Applicable Percentage Pro Rata Share of each such Swingline Loan or LoansLoan. Each Lender 2027 Bank acknowledges and agrees that its obligation to acquire and fund participations in Swingline Loans pursuant to this paragraph is absolute absolute, unconditional and unconditional irrevocable and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender .
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. ii) The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired funded pursuant to this the preceding paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the a Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan made by the Swingline Lender after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any . Any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders 2027 Banks that shall have made their payments pursuant to this the preceding paragraph and to the Swingline Lender, as their interests may appear; , provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Borrower may request Swingline Loans to the Borrower in Dollars from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $40,000,000, (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment or (iii) the Total Revolving Credit Exposure exceeding the Aggregate Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. The Swingline Lender shall not be under any obligation to make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Event may have, Fronting Exposure. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay borrow and reborrow Swingline Loans.
(b) To request Loans and prepay any Swingline Loan made to it. Each Swingline Loan shall be an ABR Loan. Immediately upon the making of a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice each Lender shall be irrevocable deemed to, and shall specify the requested date (which shall be a Business Day) of the Swingline Loanhereby irrevocably and unconditionally agrees to, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise purchase from the Swingline Lender of any a risk participation in such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available in an amount equal to the Borrower by means product of a credit or wire transfer of funds, as applicable, to an account of such ▇▇▇▇▇▇’s Applicable Percentage times the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date amount of such Swingline Loan.
(cb) The Each Swingline Loan shall be made upon the Borrower’s irrevocable notice to the Swingline Lender and the Administrative Agent, which may be given by written telephone or by a Borrowing Request; provided that any telephonic notice given must be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a Borrowing Request. Each such Borrowing Request must be received by the Swingline Lender and the Administrative Agent not later than 10:00 a.m., 1:00 p.m. New York City timetime on the requested borrowing date, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice and shall specify (i) the aggregate amount to be borrowed, which shall be a minimum of Swingline Loans in $1,000,000, and (ii) the requested borrowing date, which Lenders will participateshall be a Business Day. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of any Borrowing Request, the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by Swingline Lender will confirm with the Administrative Agent shall be promptly remitted (by telephone or in writing) that the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lenderhas also received such Borrowing Request and, as their interests may appear; provided that any such payment so remitted shall be repaid to if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. New York City time on the date of the proposed Swingline Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.05, or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the Administrative Agentterms and conditions hereof, as applicablethe Swingline Lender will, if and not later than 3:00 p.m. New York City time on the borrowing date specified in such Borrowing Request, make the amount of its Swingline Loan available to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofBorrower.
Appears in 1 contract
Sources: Credit Agreement (Illumina, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender in reliance upon the agreements of the other Lenders set forth in this Section 2.04, agrees to make Swingline Loans in Dollars or Canadian Dollars to the Borrower Revolving Borrowers from time to time during on and after the Availability PeriodRestatement Date and until the Latest Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitmentto exceed $15,000,000; provided that (x) the Swingline Lender shall not be required to make a any Swingline Loan to refinance an any outstanding Swingline Loan, (y) after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall not exceed the Total Revolving Credit Commitment and (z) the Revolving Credit Exposure of any Revolving Lender shall not exceed such ▇▇▇▇▇▇’s Revolving Credit Commitment. Each Swingline Loan shall be in a minimum principal amount of not less than $100,000 or such lesser amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, any Swingline Loan may be in an aggregate amount that is (x) equal to the entire unused balance of the aggregate unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Within the foregoing limits and subject to the terms and conditions set forth herein, Swingline Loans may be borrowed, prepaid and reborrowed. Each Swingline Loan denominated in Dollars shall bear interest only at a rate based on the Borrower may borrowAlternate Base Rate and each Swingline Loan denominated in Canadian Dollars shall bear interest only at a rate based on the Canadian Prime Rate. Immediately upon the making of a Swingline Loan, prepay each Revolving Lender shall be deemed to, and reborrow hereby irrevocably and unconditionally agrees to, purchase from the Swingline LoansLender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage of the Revolving Credit Commitments times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower Representative shall notify the Swingline Lender (with a copy to the Administrative Agent Agent) of such request by telephone (confirmed delivery of a written Borrowing Request, appropriately completed and signed by e-mail or facsimile), e-mail or facsimilea Responsible Officer of the Borrower Representative, not later than 12:00 noon, New York City time, p.m. on the day of a proposed Swingline Loan. Each such notice Borrowing Request shall specify (i) the amount to be borrowed, which shall be irrevocable a minimum of $100,000, and shall specify (ii) the requested date (borrowing date, which shall be a Business Day. Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (at the request of the Required Revolving Lenders) prior to 12:00 p.m. on the date of the proposed Swingline LoanLoan Borrowing that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender will make the amount of the requested its Swingline Loan and whether available to the Revolving Borrowers not later than 3:00 p.m. on the borrowing date specified in such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the BorrowerRequest. The Swingline Lender shall make each Swingline Loan available to the Borrower Revolving Borrowers by means of a credit to the account designated in the related Borrowing Request or wire transfer of funds, as applicable, to an account otherwise in accordance with the instructions of the Borrower designated by the Borrower in writing to the Swingline Lender Representative (orincluding, in the case of a Swingline Loan made to finance the reimbursement of an any LC Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan).
(c) The Swingline Lender may by written notice given (and in any event no less frequently than once every two weeks to the Administrative Agent not later than 10:00 a.m., New York City timeextent the outstanding Swingline Loans made by it exceed $5,000,000) at any time in its sole and absolute discretion request, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the Revolving Borrowers (which hereby authorize the Swingline Loans outstanding. Such notice shall specify Lender to so request on their behalf until the aggregate Termination Date), that each Revolving Lender make an ABR Loan or Canadian Prime Rate Loan, as applicable, in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of Swingline Loans then outstanding. Such request shall be made in writing and in accordance with the requirements of Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of ABR Loans or Canadian Prime Rate Loans, but subject to the unutilized portion of the Revolving Facility. The Swingline Lender shall furnish the Revolving Borrowers with a copy of the applicable Borrowing Request promptly (and in any case, within five Business Days) after delivering such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, . Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash collateral available with respect to the applicable Swingline Loan) for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have made an ABR Loan or Canadian Prime Rate Loan, as applicable, to the Revolving Borrowers in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(i) If for any reason any Swingline Loan cannot be refinanced by such a Revolving Loan in accordance with Section 2.04(c)(i), the request for ABR Loans or Canadian Prime Rate Loans, as applicable, submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and each Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to this Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(ii) If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04 by the time specified in Section 2.04(c), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such Lenderamount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such ▇▇▇▇▇▇’s Applicable Percentage committed Loan included in the relevant committed Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.04(c)(ii) shall be conclusive absent manifest error.
(iii) Each Revolving Lender acknowledges and agrees that its obligation to acquire make Revolving Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph Section 2.04 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including (A) the occurrence and continuance of a Default or an Event of Default or Default, (B) any reduction or termination of the Revolving Credit Commitments, (C) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, any Revolving Borrower or any other Person for any reason whatsoever, or (D) any other occurrence, event or condition, whether or not similar to any of the foregoing. No such funding of risk participations shall relieve or otherwise impair the obligation of the Revolving Borrowers to repay Swingline Loans, together with interest as provided herein.
(d) At any time after any Revolving Lender has purchased and that each funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such payment shall be made without any offsetSwingline Loan, abatement, withholding or reduction whatsoever. Each the Swingline Lender shall comply with will distribute to such Revolving Lender its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender. If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.03 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Revolving Lender shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Effective Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Lenders under this clause shall notify survive the Borrower of any participations in any Termination Date.
(e) The Swingline Lender shall be responsible for invoicing the Revolving Borrowers for interest on the Swingline Loans. Until each Revolving Lender funds its ABR Loan acquired or Canadian Prime Rate Loan, as applicable, or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent account of the Swingline Lender.
(f) The Revolving Borrowers shall make all payments of principal and not interest in respect of the Swingline Loans directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Credit Agreement (Nuvei Corp)
Swingline Loans. (a) Subject In addition to the terms and conditions set forth hereinother options available to the Borrower hereunder, the Swingline Lender agrees Lend▇▇ ▇▇▇ees, subject to the following terms and conditions, to make Swingline Loans in Dollars to the Borrower from time to time during the Availability Period, in an aggregate principal amount not to exceed the Swingline Revolving Commitment. Swingline Loans shall be made available for same day borrowings provided that notice is given in accordance with Section 2.7 hereof. All Swingline Loans shall bear interest at any time outstanding that will Daily Simple SOFR plus the Daily Simple SOFR Applicable Margin and shall be deemed to be Daily Simple SOFR Borrowings. Swingline Loans shall be funded by Wells in an amount not result in (i) to exceed the maximum amount it is required to disburse pursuant to the next sentence. In no event shall the Swingline Lender be required to fund a Swingline Loan if it would increase the total aggregate principal amount of outstanding Swingline Loans to an amount in excess of the Swingline Revolving Commitment or if, after giving effect thereto, the Total Revolving Exposure would exceed the Aggregate Revolving Commitment. Upon request of the Swingline Lender made to all the Revolving Lenders, each Revolving Lender irrevocably agrees to purchase its Percentage of any Swingline Loan made by the Swingline Lender exceeding 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 that such Event of Default did not exist at the time the Swingline Loan was made and provided further that no Lender shall be required to have its Revolving Exposure to be greater than its Revolving Commitment. Such purchase shall take place on the date of the request by Swingline Lender so long as such request is made by 11:00 a.m. (Central 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 Swingline Loan shall, to the extent purchased, (i) be treated as a Loan made by the purchasing Lenders and not by the selling Lender for all purposes under this Agreement and the payment of the purchase price by a Lender shall be deemed to be the making of a Loan by such Lender and shall constitute outstanding principal hereunder and under such Lender’s Swingline Commitment or Note, and (ii) shall no longer be considered a Swingline Loan except that all interest accruing on or attributable to such Swingline Loan for the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that 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 Swingline Lender and all such amounts accruing on or attributable to such Loans for the period from and after the date of such purchase shall not be required paid when due by the Borrower to make the Administrative Agent for the benefit of the purchasing Lenders. If prior to purchasing its Percentage of a Swingline Loan one of the events described in Section 10.10 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 Swingline Loan in an amount equal to refinance an outstanding its Percentage of such Swingline Loan. Within From and after the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request date of each Lender’s purchase of its participating interest in a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise if the Swingline Lender of receive any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of fundspayment on account thereof, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender will distribute to such Lender its participating interest in such amount (orappropriately adjusted, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided aboveinterest payments, to pay to reflect the Administrative Agentperiod of time during which such Lend▇▇’▇ ▇articipating interest was outstanding and funded); provided, for however, that in the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees event that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts was received by the Swingline Lender from the Borrower (or other party on behalf of and is required to be returned to the Borrower) in respect of a , each Lender will return to the Swingline Loan after receipt Lender any portion thereof previously distributed by the Swingline Lender to it. If any Revolving Lender fails to so purchase its Percentage of the proceeds of a sale of participations therein any Swingline Loan, such Lender shall be promptly remitted deemed to be a Defaulting Lender hereunder. No Swingline Loan shall be outstanding for more than five (5) days at a time (or such shorter period ending on the date any Revolving Loan shall be made subsequent to the Administrative Agent; any making of such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph Swingline Loan) and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph Loans shall not relieve the Borrower be outstanding for more than a total of fifteen (15) days during any default in the payment thereofmonth.
Appears in 1 contract
Sources: Unsecured Revolving Credit Agreement (First Industrial Lp)
Swingline Loans. (i) The Administrative Agent, the Swingline Lender and Lenders agree that in order to facilitate the administration of this Agreement and the other Loan Documents, promptly after Borrower Representative requests an ABR Borrowing, the Swingline Lender may elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on behalf of the Lenders and in the amount requested, same day funds to the Borrowers, on the applicable Borrowing date to the Funding Account(s) (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05
(a) Subject is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c). Each Swingline Loan shall be subject to all the terms and conditions set forth hereinapplicable to other ABR Loans funded by the Lenders, including without limitation the provisions of Section 4.02, except that all payments thereon shall be payable to the Swingline Lender agrees to make Swingline Loans to solely for its own account. In addition, the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by Borrowers hereby authorize the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that to, and the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and shall, subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
herein (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimilebut without any further written notice required), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 1:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given each Business Day, make available to the Administrative Agent not later than 10:00 a.m.Borrowers by means of a credit to the Funding Account, New York City timethe proceeds of a Swingline Loan to the extent necessary to pay items to be drawn on any Controlled Disbursement Account that Business Day; provided that, if on any Business Day require there is insufficient borrowing capacity to permit the Lenders Swingline Lender to acquire participations make available to the Borrowers a Swingline Loan in the amount necessary to pay all items to be so drawn on any such Controlled Disbursement Account on such Business Day Day, then the Borrowers shall be deemed to have requested an ABR Borrowing pursuant to Section 2.03 in all or a portion the amount of the Swingline Loans outstandingsuch deficiency to be made on such Business Day. Such notice shall specify the The aggregate amount of Swingline Loans outstanding at any time shall not exceed $10,000,000. Notwithstanding anything to the contrary contained herein, The Swingline Lender shall not make any Swingline Loan if (i) at any time JPMCB shall be the sole Lender hereunder of (ii) the requested Swingline Loan exceeds Borrowing Base Availability (after giving effect to such Swingline Loan). All Swingline Loans shall be ABR Borrowings. Borrower acknowledges that as of the Third Restatement Date, the outstanding balance of Swingline Loans is $0.
(ii) Upon the making of a Swingline Loan (whether before or after the occurrence of a Default and regardless of whether a Settlement has been requested with respect to such Swingline Loan), each Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Swingline Lender, without recourse or warranty, an undivided interest and participation in such Swingline Loan in proportion to its Applicable Percentage of the Revolving Commitment. The Swingline Lender may, at any time, require the Lenders to fund their participations. From and after the date, if any, on which Lenders will participate. Promptly upon receipt of such noticeany Lender is required to fund its participation in any Swingline Loan purchased hereunder, the Administrative Agent will give notice thereof shall promptly distribute to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges all payments of principal and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute interest and unconditional and shall not be affected all proceeds of Collateral received by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Loan.
(iii) The Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party Agent, on behalf of the BorrowerSwingline Lender, shall request settlement (a “Settlement”) in respect with the Lenders on at least a weekly basis or on any date that the Administrative Agent elects, by notifying the Lenders of a Swingline Loan after receipt such requested Settlement by facsimile, telephone, or e-mail no later than 12:00 noon New York City time on the date of such requested Settlement (the “Settlement Date”). Each Lender (other than the Swingline Lender Lender, in the case of the proceeds Swingline Loans) shall transfer the amount of a sale such Lender’s Applicable Percentage of participations therein shall be promptly remitted the outstanding principal amount of the applicable Loan with respect to which Settlement is requested to the Administrative Agent; any , to such account of the Administrative Agent as the Administrative Agent may designate, not later than 2:00 p.m., New York City time, on such Settlement Date. Settlements may occur during the existence of a Default and whether or not the applicable conditions precedent set forth in Section 4.02 have then been satisfied. Such amounts received by transferred to the Administrative Agent shall be promptly remitted by applied against the amounts of the Swingline Lender’s Swingline Loans and, together with Swingline Lender’s Applicable Percentage of such Swingline Loan, shall constitute Revolving Loans of such Lenders, respectively. If any such amount is not transferred to the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lenderby any Lender on such Settlement Date, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or shall be entitled to the Administrative Agent, recover such amount on demand from such Lender together with interest thereon as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations specified in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofSection 2.07.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth hereinherein (including Section 2.22), in reliance upon the agreements of the other Lenders set forth in this Section 2.04, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability Period, denominated in dollars, in an aggregate principal amount at any time outstanding that that, after giving effect to any Swingline Borrowing and the use of proceeds therefrom, will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by of the Swingline Lender exceeding the Swingline Lender’s its Swingline Commitment or (ii) the Swingline Lender’s aggregate Revolving Credit Exposure Exposures exceeding its Commitmentthe aggregate Revolving Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan (x) to refinance an outstanding Swingline LoanLoan or (y) if any Lender is at that time a Defaulting Lender and after giving effect to Section 2.22(a)(iv), any Defaulting Lender Fronting Exposure remains outstanding. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to such Revolving Lender’s Applicable Percentage of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone (confirmed in writing) or by e-mail facsimile or facsimileother electronic transmission (confirmed by telephone), e-mail or facsimilein each case, not later than 12:00 noonp.m., New York City time, on the day of a such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan), the principal amount of the requested Swingline Loan and whether such Borrowing is (x) if the funds are not to be an credited to a general deposit account of the Borrower maintained with the Swingline Lender, the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with Section 2.06, or (y) in the case of any ABR Revolving Borrowing or a LMIR Borrowing. If no election Swingline Loan requested to finance the reimbursement of an LC Disbursement as to provided in Section 2.05(f), the Type identity of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any Issuing Bank that made such notice received from the BorrowerLC Disbursement. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account the general deposit accounts of the Borrower designated by the Borrower in writing to maintained with the Swingline Lender or such other deposit account identified by Borrower (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.05(f), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m.1:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice the currency and such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available fundsfunds in the applicable currency, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the LendersRevolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly pay remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicablethe case may be, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) The Borrower may, at any time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such acceptance, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder.
(e) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth hereinof this Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, Commitment Period in an aggregate principal amount not to exceed at any time outstanding the amount of the Swingline Sublimit, notwithstanding the fact that will not result in such Swingline Loans, when aggregated with the Applicable Percentage of the outstanding amount of Loans and LC Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Revolving Credit Loan Commitment; provided, that after giving effect to any amount requested, (i) the aggregate principal amount of all outstanding Swingline Loans made by does not exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Aggregate Revolving Credit Loan Commitments, and (ii) the aggregate outstanding amount of the Loans of any Lender, plus such Lender’s Applicable Percentage of the outstanding amount of all LC Obligations, plus such Lender’s Applicable Percentage of the outstanding amount of all Swingline Loans does not exceed such Lender’s Revolving Credit Exposure exceeding its Loan Commitment; provided further that the Swingline Lender shall will not be required to make a Swingline Loan from and after the date which is one (1) day after it has received irrevocable written notice from the Borrower or any Lender that one or more of the applicable conditions to refinance an outstanding Credit Extensions specified in Section 4.02 is not then satisfied until such conditions are satisfied or waived in accordance with the provisions of this Agreement (and the Swingline Lender shall be entitled to conclusively rely on any such notice and shall have no obligation to independently investigate the accuracy of such notice and shall have no liability to the Borrower in respect thereof if such notice proves to be inaccurate). Each Swingline Loan shall be a Base Rate Loan. Within the foregoing limits and The aggregate amount of Swingline Loans in any Borrowing shall not be subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loansa minimum amount or increment.
(b) To request Swingline Loans shall be refunded by the Lenders on demand by the Swingline Lender. Such refundings shall be made by each Lender in accordance with its Applicable Percentage and shall thereafter be reflected as Loans of the Lenders on the books and records of the Administrative Agent. Each Lender shall fund its Applicable Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but in no event later than 1:00 p.m. on the next succeeding Business Day after such demand is made. No Lender’s obligation to fund its Applicable Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Applicable Percentage of a Swingline Loan, the Borrower nor shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of any Lender’s Applicable Percentage be increased as a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender result of any such notice received from the Borrower. The Swingline failure of any other Lender shall make each Swingline Loan available to the Borrower by means fund its Applicable Percentage of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Borrower shall pay to the Swingline Lender may the amount of each Swingline Loan (unless such Swingline Loan is fully refunded by written notice given the Lenders pursuant to Section 2.02(b)): on the earliest to occur of (i) demand by the Swingline Lender and (ii) the Revolving Credit Loan Maturity Date. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their Applicable Percentages (unless the amounts so recovered by or on behalf of the Borrower pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Administrative Agent has received notice in the manner required pursuant to Section 10.02 and which such Event of Default has not later than 10:00 a.m.been waived by the Majority Lenders or the Lenders, New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. applicable).
(d) Each Lender acknowledges and agrees that its obligation to acquire participations in refund Swingline Loans pursuant to in accordance with the terms of this paragraph Section 2.02 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination including, without limitation, non-satisfaction of the Commitmentsconditions set forth in Article IV. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.02, one of the events described in subsections (i)(i), (i)(ii) or (i)(iii) of Section 8.01 shall have occurred, each Lender will, on the date the applicable Revolving Credit Loan would have been made, purchase an undivided, irrevocable and unconditional participating interest in the Swingline Loans to be refunded in an amount equal to its Applicable Percentage of the aggregate amount of such payment shall be made without any offset, abatement, withholding or reduction whatsoeverSwingline Loans. Each Lender shall comply with its obligation under this paragraph by wire will immediately transfer of to the Swingline Lender, in immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations amount of the Lenders)its participation, and the Administrative Agent shall promptly pay to upon receipt thereof, the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the amounts so date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received by it from any Lender such Lender’s participating interest in a Swingline Loan, the LendersSwingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded). The Administrative Agent Notwithstanding the foregoing provisions of this Section 2.02(d), a Lender shall notify the Borrower of any participations in any have no obligation to refund a Swingline Loan acquired pursuant to this paragraphSection 2.02(b) if (i) a Default shall exist at the time such refunding is requested by the Swingline Lender, (ii) such Default had occurred and thereafter payments was continuing at the time such Swingline Loan was made by the Swingline Lender and (iii) such Lender notified the Swingline Lender in respect writing, not less than one Business Day prior to the making by the Swingline Lender of such Swingline Loan shall be Loan, that such Default has occurred and is continuing and that such Lender will not refund Swingline Loans made while such Default is continuing.
(e) In order to facilitate the borrowing of Swingline Loans, the Borrower and the Swingline Lender may mutually agree to, and are hereby authorized to, enter into an Autoborrow Agreement in form and substance satisfactory to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from (including that certain Autoborrow Agreement dated July 27, 2018) (the Borrower (or other party on behalf of “Autoborrow Agreement”) providing for the Borrower) in respect of a Swingline Loan after receipt automatic advance by the Swingline Lender of Swingline Loans under the proceeds of a sale of participations therein conditions set forth in such agreement. At any time an Autoborrow Agreement is in effect, the requirements for Swingline Loans set forth in the immediately preceding paragraph shall not apply, and all Swingline Loans shall be promptly remitted to made in accordance with the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appearAutoborrow Agreement; provided that any such payment so remitted automatic advance made by Bank of America in reliance of the Autoborrow Agreement shall be repaid deemed a Swingline Loan as of the time such automatic advance is made notwithstanding any provision in the Autoborrow Agreement to the contrary. For purposes of determining the Revolving Credit Facility Usage under the Aggregate Revolving Credit Loan Commitments at any time during which an Autoborrow Agreement is in effect, the Revolving Credit Facility Usage of all Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required Loans shall be deemed to be refunded to the Borrower for amount of the Swingline Sublimit. For purposes of any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Autoborrow Agreement, all references to Bank of any default America in the payment thereofAutoborrow Agreement shall be deemed to be a reference to Bank of America, in its capacity as Swingline Lender hereunder.
Appears in 1 contract
Sources: Credit Agreement (Sunoco LP)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinhereof, the Swingline Lender Bank severally agrees to make Swingline Loans a portion of the Aggregate Commitment available to the Borrower from time Company by making swingline loans (individually, a "Swingline Loan"; collectively, the "Swingline Loans") to time the Company on any Business Day during the Availability Period, period from the Closing Date to the Revolving Termination Date in accordance with the procedures set forth in this Section in an aggregate principal amount at any one time outstanding not to exceed $25,000,000, notwithstanding the fact that will not such Swingline Loans, when aggregated with the Swingline Bank's outstanding Loans, may exceed the Swingline Bank's Commitment (the amount of such commitment of the Swingline Bank to make Swingline Loans to the Company pursuant to this subsection 2.10(a), as the same shall be reduced pursuant to subsection 2.7(b) or as a result in of any assignment pursuant to Section 11.8, the Swingline Bank's "Swingline Commitment"); provided, that at no time shall (i) the aggregate principal amount Effective Amount of outstanding all Revolving Loans, Swingline Loans made by and L/C Obligations exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Aggregate Commitment, or (ii) the Effective Amount of all Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that Loans exceed the Swingline Lender shall not Commitment. Additionally, no more than four Swingline Loans may be required to make a Swingline Loan to refinance an outstanding Swingline Loanat any one time. Within the foregoing limits limits, and subject to the other terms and conditions set forth hereinhereof, the Borrower Company may borrowborrow under this subsection 2.10(a), prepay pursuant to subsection 2.6 and reborrow Swingline Loanspursuant to this subsection 2.10(a).
(b) To request The Company shall provide the Agent (with a copy to the Swingline Loan, Bank) irrevocable written notice (including notice via facsimile confirmed immediately by a telephone call) in the Borrower shall notify form of a Notice of Borrowing of any Swingline Loan requested hereunder (which notice must be received by the Administrative Swingline Bank and the Agent of such request by telephone prior to 12:00 noon (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City San Francisco time, ) on the day of a proposed Swingline Loan. Each such notice shall requested Borrowing date) specifying (i) the amount to be irrevocable and shall specify borrowed, (ii) the requested date (Borrowing date, which shall must be a Business Day, and (iii) with respect to any requested Swingline Loan after the date the Company gives the notice regarding allocation of the Swingline LoanLoans pursuant to Section 2.16, the amount of whether the requested Swingline Loan and whether such Borrowing is to shall be an ABR Borrowing or a LMIR Borrowing. If no election as allocated to the Type Revolving Facility Tranche or the Capital Expenditure Tranche. Upon receipt of Swingline Borrowing is specifiedthe Notice of Borrowing, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender Bank will immediately confirm with the Agent (by telephone or in writing) that the Agent has received a copy of any such notice received the Notice of Borrowing from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of fundsCompany and, as applicableif not, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in Bank will provide the case of Agent with a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstandingcopy thereof. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.Unless the
Appears in 1 contract
Sources: Revolving Credit Agreement (Plum Creek Timber Co L P)
Swingline Loans. (a) Subject Agent may convert any request by Borrower for a Revolving Advance constituting a Domestic Rate Loan into a request for a Swingline Loan, to the terms and conditions set forth herein, be made solely by the Swingline Lender agrees to make Borrower as otherwise provided in Section 2.3 on the date of the requested Advance. The Swingline Loans to shall be Domestic Rate Loans and shall not exceed in the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding the Maximum Swingline Loan Amount. In the event that will not result in (i) on any Business Day Swingline Lender desires that all or any portion of the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment should be reduced in whole or (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided that the in part, Swingline Lender shall not promptly notify Agent to that effect and indicate the portion of the Swingline Loans to be required reduced. Swingline Lender hereby agrees that it shall notify Agent to reduce the outstanding Swingline Loans to $0 at least once every week. Agent agrees to promptly transmit to Lenders the information contained in each notice received by Agent from Swingline Lender and shall concurrently notify Lenders of each Lender’s Commitment Percentage of the obligation to make a Revolving Advance to repay the Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans(or portion thereof).
(b) To request a Each of the Lenders hereby unconditionally and irrevocably agrees to fund to Agent for the benefit of Swingline LoanLender, in lawful money of the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimileUnited States and in same day funds, not later than 12:00 noon, 1:00 p.m. (New York City time, ) on the day Settlement Date, such Lender’s Commitment Percentage of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date Revolving Advance (which Revolving Advance shall be a Business DayDomestic Rate Loan and shall be deemed to be requested by Borrower) in the principal amount of such portion of the Swingline Loan, Loans which is required to be paid to Swingline Lender under this Section 2.4 (regardless of whether the amount conditions precedent thereto set forth in Article VIII are then satisfied and whether or not Borrower has provided a notice of borrowing under Section 2.2 and whether or not any Default or Event of Default exists or all or any of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as Advances have been accelerated, but subject to the Type other provisions of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowingthis Section 2.4). The Administrative Agent will promptly advise the Swingline Lender proceeds of any such notice received from Revolving Advance shall be immediately paid over to Agent for the Borrower. The benefit of Swingline Lender shall make each Swingline Loan available for application to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The In the event that an Event of Default shall occur and either (i) such Event of Default is of the type described in Section 10.7 or (ii) no further Revolving Advances are being made under this Agreement, so long as any such Event of Default is continuing, then, each of the Lenders (other than Swingline Lender) shall be deemed to have irrevocably, unconditionally and immediately purchased from Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion Lender’s Commitment Percentage of the Swingline Loans outstandingLoan outstanding as of the date of the occurrence of such Event of Default. Such notice Each Lender shall specify effect such purchase by making available an amount equal to its participation on the aggregate date of such purchase in Dollars in immediately available funds to Agent for the benefit of Swingline Lender. In the event any Lender fails to make available to Swingline Lender when due the amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of participation in the Swingline Loan, Swingline Lender shall be entitled to recover such Swingline Loan or Loansamount on demand from such Lender together with interest at the Federal Funds Rate. Each such purchase by a Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, shall be made without recourse to pay to the Administrative Agent, for the account of the Swingline Lender, such without representation or warranty of any kind, and shall be effected and evidenced pursuant to documents reasonably acceptable to Swingline Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in The Swingline Loans pursuant to shall be evidenced by one or more promissory notes substantially in the form of Exhibit 2.4. The obligations of the Lenders under this paragraph is absolute Section 2.4 shall be absolute, irrevocable and unconditional unconditional, shall be made under all circumstances and shall not be affected by any circumstance whatsoeveraffected, including the occurrence and continuance of a Default reduced or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower impaired for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofreason whatsoever.
Appears in 1 contract
Sources: Loan Agreement (Verrazano,inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during in dollars until the Availability PeriodSwingline Termination Date, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment $5,000,000 or (ii) the Swingline Lender’s sum of the total Revolving Credit Exposure Exposures exceeding its Commitmentthe total Revolving Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Notwithstanding the foregoing, the Swingline Lender shall not be required to make a Swingline Loan if (i) any Revolving Lender shall be a Defaulting Lender, or (ii) any Revolving Lender shall have notified the Swingline Lender and the Borrower in writing at least one Business Day prior to the date of Borrowing with respect to such Swingline Loan that the conditions set forth in Section 5.2 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon3:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the aggregate principal amount to be borrowed, (ii) the requested date of such Borrowing, and (which shall be a Business Dayiii) the amount of, and the length of the Swingline Interest Period for, each Swingline Loan, provided, however, that no such Swingline Interest Period shall end after the amount of Business Day immediately preceding the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingTermination Date. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.9(e), by remittance to the Issuing Bank) by 3:00 3:30 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 11:00 a.m., New York City time, on any Business Day notify the Administrative Agent that the Swingline Lender is requesting that each Lender, and the Administrative Agent may (with the consent of Lenders holding more than 50% of the total Swingline Exposure) or shall (at the request of Lenders holding more than 50% of the total Swingline Exposure) by written notice given to the Swingline Lender not later than 11:00 a.m., New York City time, on any Business Day require that each Lender, at the Lenders option of the Borrower, (i) make a Revolving Loan in an amount equal to its pro rata Revolving Commitment with respect to the outstanding principal balance of, and accrued and unpaid interest on, the Swingline Loans, or (ii) acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of In either such notice, case (i) the Administrative Agent will give notice shall notify each Lender of the details thereof to each Lender, specifying in such notice and of the amount of such Lender’s Applicable Percentage Revolving 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 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, New York City time, on any Business Day, by no later than 3:00 p.m., New York City time, on such Business Day, or (B) in the event that such Lender receives such notice at or after 12:00 noon, New York City time, on any Business Day, by no later than 1:00 p.m. New York City time on the immediately succeeding Business Day. Any Loans made pursuant to this paragraph (c) shall, for all purposes hereof, be deemed to be Revolving Loans referred to in Section 2.1 and made pursuant to Section 2.4(a), and the Lenders’ obligations to 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 Swingline Loan Lender by promptly crediting or Loansotherwise transferring the amounts so received, in like funds, to the Swingline Lender. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay shall also be liable for an amount equal to the product of its pro rata Revolving Commitment and any amounts paid by the Borrower pursuant to this Section 2.10 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. Whenever the Administrative AgentAgent is reimbursed by the Borrower, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations for any payment in connection with Swingline Loans and such payment relates to an amount previously paid by a Lender pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoeverSection, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall will promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any over such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reasonLender. The purchase of participations in a Swingline Loan or the making by the Lenders of a Revolving Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Credit Agreement (Gci Liberty, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to may make Swingline Loans in Dollars to the U.S. Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $15,000,000, (ii) the Swingline Lender’s (A) Aggregate Revolving Credit Exposure exceeding its (B) the Aggregate Commitments minus the Aggregate Ancillary Commitments, (iii) the Aggregate Total Exposure exceeding the Aggregate Commitments or (iv) the sum of (I) the outstanding principal amount of any Lender’s Revolving Loans and (II) such Lender’s Total Lender Risk Participation exceeding such Lender’s Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the U.S. Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline LoanBorrowing, the U.S. Borrower shall notify the Administrative Applicable Agent of such request by telephone (confirmed in a writing acceptable to the Applicable Agent if requested by e-mail or facsimilethe Applicable Agent), e-mail or facsimile, not later than 12:00 noon, New York City timeLocal Time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the requested date (which shall be a Business Day) of the Swingline Loan, and (ii) the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Applicable Agent will shall promptly advise the Swingline Lender of any such notice received from the U.S. Borrower. The Swingline Lender and the U.S. Borrower shall agree upon the interest rate applicable to such Swingline Loan, provided that if such agreement cannot be reached prior to 2:00 p.m., Local Time, on the day of such proposed Swingline Loan then such Swingline Loan shall bear interest at the One‑Month LIBO Rate plus the Applicable Margin. Any funding of a Swingline Loan by the Swingline Lender shall be made in accordance with Section 2.02(a) on the proposed date thereof by wire transfer of immediately available funds by 3:00 p.m., Local Time, to the account of the Applicable Agent most recently designated by it for such purpose by notice to the Swingline Lender. The Applicable Agent will make each such Swingline Loan available to the U.S. Borrower by means of a credit or wire transfer of promptly crediting the amounts so received, in like funds, as applicable, to an the general deposit account of the U.S. Borrower designated that has been identified by the U.S. Borrower in writing to the Swingline Lender Applicable Agent (or, in the case of a Swingline Loan Borrowing made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan).
(c) The Swingline Lender may by written notice given to the Administrative Applicable Agent not later than 10:00 a.m.1:00 p.m., New York City timeLocal Time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the outstanding Swingline Loans outstandingLoans. Such notice shall specify the aggregate amount of such Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, the Administrative Applicable Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or LoansRisk Participation with respect to the Swingline Loans then outstanding. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Applicable Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or LoansRisk Participation with respect to the Swingline Loans then outstanding. Each Lender acknowledges and agrees that its respective obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.07 with respect to Loans made by such Lender (and Section 2.06 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Applicable Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Applicable Agent shall notify the U.S. Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphparagraph (c), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Applicable Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the U.S. Borrower (or other party on behalf of the such Borrower) in respect of a Swingline Loan after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Applicable Agent; any such amounts received by the Administrative Applicable Agent shall be promptly remitted by the Administrative Applicable Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the such Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the such Swingline Lender or to the Administrative Applicable Agent, as applicable, if and to the extent such payment is required to be refunded to the U.S. Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the U.S. Borrower of any default in the payment thereof.
(d) Notwithstanding anything herein to the contrary, if there at any time exists a Defaulting Lender, unless such Lender’s Fronting Exposure has been reallocated to other Lenders in accordance with Section 2.24(a), before making any Swingline Loans, the Swingline Lender may condition the provision of such Swingline Loans on its entering into arrangements satisfactory to the Swingline Lender with the Borrower or such Defaulting Lender to eliminate the Swingline Lender’s Fronting Exposure.
Appears in 1 contract
Sources: Credit Agreement (Miller Herman Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the each Swingline Lender agrees to make Swingline Loans in Dollars to the Borrower Borrowers from time to time during prior to the Availability PeriodCommitment Termination Date, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the such Swingline Lender exceeding the such Swingline Lender’s Swingline Commitment or Commitment, (ii) the Swingline Lender’s Revolving Credit Exposure of all Lenders exceeding its the Revolving Credit Commitment Amount then in effect or (iii) the aggregate principal amount of outstanding Swingline Loans made by such Swingline Lender exceeding such Lender’s Commitment; provided that the no Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline LoanLoan and provided, further that, if there exists a Defaulting Lender, no Swingline Lender shall be required to make a Swingline Loan unless the Company shall have complied with Section 2.16(e) with respect to any Fronting Exposure that exists at the time of such extension of credit or would exist immediately after giving effect to such extension of credit. Within the foregoing limits and subject to the terms and conditions set forth herein, the each Borrower may borrow, prepay repay and reborrow Swingline Loans. For the avoidance of doubt, Swingline Loans may be made by one or both Swingline Lenders, at the Company’s election, and need not be funded pro rata in accordance with each Swingline Lender’s respective share of the aggregate Swingline Commitments.
(b) To request a Swingline LoanLoan from any Swingline Lender, the Company on behalf of the applicable Borrower shall notify deliver by telephone, facsimile or email a Swingline Request (which, if by telephone, shall be promptly confirmed in writing) to the Administrative Agent of and such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimileSwingline Lender, not later than 12:00 noon, New York City time3:00 p.m., on the day of a proposed Swingline Loan. Each such notice Swingline Request shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan), the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to Loan, the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the applicable Swingline Lender of any such notice received from and the applicable Borrower. The applicable Swingline Lender shall make each such requested Swingline Loan available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated as directed in writing by the Borrower in writing to the Swingline Lender (or, Company in the case of a applicable Swingline Loan made to finance Request maintained with the reimbursement of an LC Disbursement as provided in Section 2.05(e), Administrative Agent by remittance to the Issuing Bank) by 3:00 p.m., New York City time, 4:00 p.m. on the requested date of such Swingline Loan. Swingline Loans shall be made in minimum amounts of $2,500,000 and integral multiples of $100,000 above such amount.
(c) The Each Borrower shall have the right at any time and from time to time to repay any Swingline Loan, in whole or in part, upon giving written notice (which may be from the Company on behalf of such Borrower) to the applicable Swingline Lender and the Administrative Agent before 12:00 noon on the proposed date of repayment.
(d) Any Swingline Lender may at any time in its discretion by written notice given to the Administrative Agent (provided such notice requirement shall not apply if such Swingline Lender and the Administrative Agent are the same entity) not later than 10:00 a.m., New York City time, 11:00 a.m. on any the next succeeding Business Day following such notice require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans by such Swingline Lender then outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent, or if such Swingline Lender and the Administrative Agent are the same entity, such Swingline Lender, will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the applicable Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, Revolving Credit Commitment Amount and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.5(a) with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders)Lender, and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower Company of any participations in any Swingline Loan acquired by the Lenders pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the such Swingline Lender. Any amounts received by the such Swingline Lender from the any Borrower (or other party on behalf of the any Borrower) in respect of a Swingline Loan by such Swingline Lender after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any . Any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lenderparagraph, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower Borrowers of any default in the payment thereof.
(e) If, at any time there shall exist any Fronting Exposure with respect to the Swingline Exposure (or any Fronting Exposure would result from the making of any requested Swingline Loan), then the Company shall, if the full amount of such Fronting Exposure has not been (or, following the making of such requested Swingline Loan would not be able to be) reallocated pursuant to Section 2.18(a)(iv), promptly upon the request of the Administrative Agent or the applicable Swingline Lender (or, with respect to any such requested Swingline Loan, prior to the making of such Swingline Loan), deliver to the Administrative Agent Cash Collateral, in accordance with Section 7.4(b), to secure such unallocated Fronting Exposure, and such Cash Collateral shall be applied as a prepayment on Defaulting Lenders’ participation in such Swingline Loans so as to eliminate such Fronting Exposure and applied as a prepayment on the outstanding principal amount of such Swingline Loans so as to reduce the outstanding principal amount of such Swingline Loans by an equivalent amount.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions herein set forth hereinforth, the Swingline Lender agrees to make Swingline Loans loans to the Borrower in an Available Currency requested by the Borrower at any time and from time to time during on or after the Availability Period, Effective Date and until the termination of its Swingline Commitment in an aggregate principal amount Principal Amount at any time outstanding that will not result in (ix) the aggregate principal amount Principal Amount of outstanding all Swingline Loans made by exceeding $100,000,000 in the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment aggregate or (iiy) the Swingline Lender’s Aggregate Revolving Credit Exposure exceeding its the Total Revolving Credit Commitment; provided provided, that notwithstanding the foregoing, no Swingline Lender shall not be required obligated to make any Swingline Loans at a time when a Revolving Credit Lender, as the case may be, is a Defaulting Lender, unless such Swingline Lender has entered into arrangements reasonably satisfactory to it and the Borrower to eliminate such Swingline Lender’s risk with respect to the Defaulting Lender’s participation in such Swingline Loans, including by Cash Collateralizing such Defaulting Lender’s Pro Rata Percentage of the outstanding amount of Swingline Loans, as the case may be (which Cash Collateralization may be made with the proceeds of a simultaneous borrowing of additional Swingline Loans incurred from Non-Defaulting Lenders and otherwise in compliance with the provisions of this Section 2.23). Each Swingline Loan shall be in a principal amount not less than the Minimum Applicable Borrowing Amount. Each Swingline Commitment may be terminated or reduced from time to refinance an outstanding Swingline Loantime as provided herein. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, pay or prepay and reborrow Swingline LoansLoans hereunder subject to the terms, conditions and limitations set forth herein.
(b) To request a Swingline Loan, the Borrower shall notify submit a written notice to the Administrative Agent of such request by telephone (confirmed by e-telecopy or electronic mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be in a form approved by the Administrative Agent (such approval not to be unreasonably withheld), shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender Lenders of any such notice received from the Borrower. The Each Swingline Lender shall make each its ratable portion of the requested Swingline Loan (such ratable portion to be calculated based upon such Swingline Lender’s Swingline Commitment to the total Swingline Commitments of all of the Swingline Lenders) available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (orfor such purpose, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. The failure of any Swingline Lender to make its ratable portion of a Swingline Loan shall not relieve any other Swingline Lender of its obligation hereunder to make its ratable portion of such Swingline Loan on the date of such Swingline Loan, but no Swingline Lender shall be responsible for the failure of any other Swingline Lender to make the ratable portion of a Swingline Loan to be made by such other Swingline Lender on the date of any Swingline Loan.
(c) The Borrower shall have the right at any time and from time to time to prepay any Swingline Loan made to it, in whole or in part, upon giving written or fax notice by the Borrower (or telephone notice promptly confirmed by written, or fax notice) to the Administrative Agent and the relevant Swingline Lender before 11:00 a.m. on the date of prepayment at such Swingline Lender’s address for notices specified in Section 9.01; provided, that any such notice delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other financing arrangements, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(d) Each Swingline Loan shall be an ABR Loan (if such Loan is a US Dollar-Denominated Loan) or a Canadian Prime Rate Loan (if such Loan is a Canadian Dollar-Denominated Loan) and, subject to the provisions of Section 2.07, shall bear interest as provided in Section 2.06(a) or (b), as the case may be.
(e) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, 11:00 a.m. on any Business Day require the Revolving Credit Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount (and the relevant currency) of Swingline Loans in which Revolving Credit Lenders will participate. Promptly The Administrative Agent will, promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Credit Lender, specifying in such notice such Lender’s Applicable Pro Rata Percentage of such Swingline Loan or LoansLoan. Each In furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided aboveabove (and in any event, if such notice is received by 12:00 noon, New York City time, on a Business Day no later than 5:00 p.m. New York City time on such Business Day and if received after 12:00 noon, New York City time, on a Business Day shall mean no later than 10:00 a.m. New York City time on the immediately succeeding Business Day), to pay to the Administrative AgentAgent in the Applicable Currency, for the account of the Swingline Lender, such Revolving Credit Lender’s Applicable Pro Rata Percentage of such Swingline Loan or LoansLoan. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph Section 2.23(e) is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the CommitmentsDefault, 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 Section 2.23(e) by wire transfer of immediately available fundsfunds in the Applicable Currency, in the same manner as provided in Section 2.06 2.02(c) with respect to Revolving Loans made by such Lender in the relevant Available Currency (and Section 2.06 2.02(c) shall apply, mutatis mutandis, to the payment obligations of the Revolving Credit Lenders), ) and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.Revolving Credit
Appears in 1 contract
Sources: Credit Agreement (Dayforce, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, the Swingline Lender agrees to make Swingline Loans in Dollars to the Borrower in an aggregate principal amount at any time outstanding that will not result in (i) Total Outstanding Amount exceeding the aggregate amount of Commitments, (ii) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Commitment, (iii) the aggregate amount of Swingline Loans exceeding the Swingline Sublimit or (iiiv) the Swingline any Lender’s Revolving Credit Exposure Outstanding Amount exceeding its Commitment; provided that the a Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify submit a written notice to the Administrative Agent of such request by telephone (confirmed by e-telecopy or electronic mail or facsimile), e-mail or facsimile, not later than 12:00 noon2:00 pm, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be in a form approved by the Administrative Agent, shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each the requested Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower with the Administrative Agent designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, for such purpose on the requested date of such Swingline Loan.
(c) The Swingline Lender may (or shall, if necessary to permit other Borrowings that would otherwise be permitted pursuant to Section 2.01) by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage Pro Rata Share of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice as provided abovefrom the Administrative Agent (and in any event, if such notice is received by 12:00 noon, New York City time, on a Business Day no later than 5:00 p.m. New York City time on such Business Day and if received after 12:00 noon, New York City time, on a Business Day shall mean no later than 10:00 a.m. New York City time on the immediately succeeding Business Day), to pay to the Administrative Agent, for the account of the Swingline Lender, such LenderL▇▇▇▇▇’s Applicable Percentage Pro Rata Share of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 Sections 2.02 and 2.12 with respect to Loans made by such Lender (and Section 2.06 Sections 2.02 and 2.12 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) The Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of the Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.08(a). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans.
(e) Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline L▇▇▇▇▇ may resign as a Swingline L▇▇▇▇▇ at any time upon thirty days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.03(d) above.
Appears in 1 contract
Sources: Revolving Credit Agreement (Ferguson Enterprises Inc. /DE/)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinFor ease of administration, the Swingline Lender agrees to make Swingline Base Margin Loans to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans may be made by the Swingline SwingLine Lender exceeding (in the Swingline Lender’s Swingline Commitment or (iiaggregate, the "SwingLine Loans") in accordance with the Swingline Lender’s procedures set forth in this Agreement for the making of loans and advances under the Revolving Credit Exposure exceeding its Commitment; provided that Credit. The unpaid principal balance of the Swingline Lender SwingLine Loans shall not at any one time be required to make a Swingline in excess of the SwingLine Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline LoansCeiling.
(b) To request a Swingline Loan, The aggregate unpaid principal balance of SwingLine Loans shall bear interest at the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice rate applicable to Base Margin Loans and shall be irrevocable and shall specify repayable as a loan under the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline LoanRevolving Credit.
(c) The Swingline Lender may Borrowers' obligation to repay SwingLine Loans shall be evidenced by written notice given a Note in the form of EXHIBIT 2:2-9(c), annexed hereto, executed by the Borrowers, and payable to the Administrative Agent not later SwingLine Lender. Neither the original nor a copy of that Note shall be required, however, to establish or prove any Liability. The Borrowers shall execute a replacement of any SwingLine Note which has been lost, mutilated, or destroyed thereof and deliver such replacement to the SwingLine Lender.
(d) For all purposes of this Loan Agreement, the SwingLine Loans and the Borrowers' obligations to the SwingLine Lender constitute Revolving Credit Loans and are secured as "Liabilities".
(e) SwingLine Loans may be subject to periodic settlement with the Revolving Credit Lenders as provided in this Agreement, but in any event, no less frequently than 10:00 a.m., New York City time, weekly.
(a) An account ("Loan Account") shall be opened on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion books of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans Agent in which Lenders will participate. Promptly upon receipt a record shall be kept of such noticeall loans and advances made under the Revolving Credit.
(b) The Agent shall also keep a record (either in the Loan Account or elsewhere, as the Administrative Agent will give notice thereof may from time to each Lendertime elect) of all interest, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely fees, service charges, costs, expenses, and unconditionally agrees, upon receipt of notice as provided above, to pay other debits owed to the Administrative Agent, Agent and each Revolving Credit Lender on account of the Liabilities and of all credits against such amounts so owed.
(c) All credits against the Liabilities shall be conditional upon final payment to the Agent for the account of each Revolving Credit Lender of the Swingline Lenderitems giving rise to such credits. The amount of any item credited against the Liabilities which is charged back against the Agent or any Revolving Credit Lender for any reason or is not so paid shall be a Liability and shall be added to the Loan Account, such Lender’s Applicable Percentage whether or not the item so charged back or not so paid is returned.
(d) Except as otherwise provided herein, all fees, service charges, costs, and expenses for which any Borrower is obligated hereunder are payable on demand. In the determination of Availability, the Agent may deem fees, service charges, accrued interest, and other payments which will be due and payable between the date of such Swingline determination and the first day of the then next succeeding month as having been advanced under the Revolving Credit whether or not such amounts are then due and payable.
(e) The Agent, without the request of the Lead Borrower, may advance under the Revolving Credit any interest, fee, service charge, or other payment to which the Agent or any Revolving Credit Lender is entitled from any Borrower pursuant hereto and may charge the same to the Loan or LoansAccount notwithstanding that such amount so advanced may result in an OverLoan. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and Such action on the part of the Agent shall not be affected by any circumstance whatsoever, including the occurrence and continuance of constitute a Default or an Event of Default or any reduction or termination waiver of the Commitments, Agent's rights and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverBorrower's obligations under Section 2:2-12(b). Each Lender shall comply with its obligation under this paragraph by wire transfer Any amount which is added to the principal balance of immediately available funds, in the same manner Loan Account as provided in this Section 2.06 with respect 2:2-10(e) shall bear interest at the interest rate then and thereafter applicable to Loans made Base Margin Loans.
(f) Any statement rendered by such the Agent or any Revolving Credit Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations Lead Borrower concerning the Liabilities shall be considered correct and accepted by each Borrower and shall be conclusively binding upon each Borrower unless the Lead Borrower provides the Agent with written objection thereto within sixty (60) days from the mailing of such statement, which written objection shall indicate, with particularity, the reason for such objection. The Loan Account and the Agent's books and records concerning the loan arrangement contemplated herein and the Liabilities shall be prima facie evidence and proof of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofitems described therein.
Appears in 1 contract
Swingline Loans. (ai) Subject to the terms and conditions set forth hereinof this Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower Company from time to time on any Business Day during the Availability Period, period from the date hereof to but excluding the Facility Termination Date in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal Dollar Amount not to exceed at any date the lesser of (A) $50,000,000 (the "Swingline Amount") and (B) the unused portion of the Aggregate Commitment as of such date. In addition, the outstanding principal amount of outstanding Swingline Loans made by in Dollars shall not exceed $40,000,000 at any time, and the Equivalent Amount of the outstanding principal amount of Swingline Loans made in British Pounds Sterling or the euro unit shall not exceed $10,000,000 at any time. The obligation of the Swingline Lender exceeding to make Swingline Loans in British Pounds Sterling or the euro unit shall be in the Swingline Lender’s 's sole discretion, and any such Swingline Commitment or (ii) Loans shall be deemed to utilized the Swingline Lender’s Revolving Credit Exposure exceeding its 's Multicurrency Commitment; provided that . Each Lender's Commitment shall be deemed utilized by an amount equal to such Lender's Commitment Percentage of each Swingline Loan for purposes of determining the amount of Loans required to be made by such Lender. All Swingline Loans shall bear interest at the Alternate Base Rate or such other rate as shall be agreed between the Company and the Swingline Lender shall not be required with respect to make a any Swingline Loan to refinance an outstanding Swingline Loan. Within at the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of time such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowingmade. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance in Dollars is not repaid by the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, Company on the requested date when due, each Lender will make a Floating Rate Loan the proceeds of such which will be used to repay the Swingline Loan.
(cii) The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of thereof by the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account Lenders and the Company, the Company shall be deemed to have requested a Floating Rate Advance in an amount equal to the Dollar Amount of such Swingline Loan and such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in an Eligible Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, such Lender’s Applicable Percentage immediately and automatically be converted to and redenominated in Dollars equal to the Equivalent Amount of each such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination determined as of the Commitments, and that each date of such payment shall be made without any offset, abatement, withholding or reduction whatsoeverconversion. Each Lender shall comply with be absolutely and unconditionally obligated to fund its obligation under this paragraph by wire transfer Commitment Percentage of immediately available fundssuch Floating Rate Advance or, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandisif applicable, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations purchase a participation interest in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.the
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower in dollars from time to time on any Business Day during the period from the Closing Date to the sixth Business Day preceding the last day of the Availability Period, Period in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender Exposure exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s sum of the total Revolving Credit Exposure Exposures plus the aggregate principal amount of outstanding Competitive Loans exceeding its Commitment; the total Revolving Commitments, provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within Notwithstanding the foregoing limits foregoing, the Swingline Lender shall not be required to make a Swingline Loan if (A) any applicable Lender shall be in default of its obligations under this Credit Agreement or (B) any Credit Party shall have notified the Swingline Lender and subject the Borrower in writing at least one Business Day prior to the terms and date of the proposed Borrowing of such Swingline Loan that the conditions set forth hereinin Section 5.3 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Swingline Loan, provided, further, that the Swingline Lender shall not make such Swingline Loan if Required Lenders shall have so notified the Administrative Agent, the Swingline Lender and the Borrower may borrowin writing and the conditions with respect to which such notice was provided remain unsatisfied as of the requested time of the making of such Swingline Loan. Each Swingline Loan shall be due and payable on the maturity thereof, prepay and reborrow Swingline Loans.
(b) provided that in no event shall such maturity be later than the sixth Business Day preceding the Maturity Date. To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request and the Swingline Lender by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not ) no later than 12:00 noon2:00 p.m., New York City time, on the day of a proposed the relevant Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the aggregate principal amount to be borrowed, (ii) the requested date (which shall be a Business Day), and (iii) of the requested Swingline Loan, the amount Rate and maturity date of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing which shall be an ABR Borrowingnot later than seven Business Days after the making of such Swingline Loan. The Administrative Agent will promptly advise Subject to its agreement with the Borrower on the applicable Swingline Rate, the Swingline Lender of any such notice received from will make the Borrower. The Swingline Lender shall make each Swingline Loan requested amount available to the Borrower promptly on that same day by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated in writing by the Borrower in writing not less than one Business Day prior to the Swingline Lender (such Loan or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), 2.10(e) by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) . The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the applicable Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the applicable Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each applicable Lender, specifying in such notice such applicable Lender’s 's Applicable Percentage of such Swingline Loan or Swingline Loans. Each applicable Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s 's Applicable Percentage of such Swingline Loan or Swingline Loans. Each applicable Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each applicable Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 2.6 with respect to Revolving Loans made by such Lender (and Section 2.06 2.6 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the applicable Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the applicable Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof. The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day notify the Administrative Agent that the Swingline Lender is requesting that the applicable Lenders make an ABR Revolving Borrowing in an amount equal to the outstanding principal balance and accrued interest on the Swingline Loans, in which case (i) the Administrative Agent shall notify each applicable Lender of the details thereof and of the amount of such Lender's Loan to be made as part of such ABR Revolving Borrowing, 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 Loan to be made 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) on such date, in the event that such Lender shall have received notice of such ABR Revolving Borrowing prior to 12:00 noon, New York City time, or (B) if such notice has not been received by such Lender prior to such time on such date, then not later than 1:00 p.m., New York City time, on (X) the Business Day that such Lender receives such notice, if such notice is received prior to 12:00 noon, New York City time, on the day of receipt or (Y) the Business Day immediately following the day that such Lender receives such notice, if such notice is not received prior to such time on the day of receipt. Such Loans shall, for all purposes hereof, be deemed to be an ABR Revolving Borrowing referred to in Section 2.1(a) and made pursuant to Section 2.3, and the Lenders obligations to make such Loans shall be absolute and unconditional. The Administrative Agent will make such Loans available to the Swingline Lender by promptly crediting or otherwise transferring the amounts so received, in like funds, to the Swingline Lender for the purpose of repaying in full the Swingline Loans and all accrued interest thereon.
Appears in 1 contract
Sources: Credit Agreement (Bisys Group Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth hereinof this Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Commitment Period; provided, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of all outstanding Swingline Loans made by (after giving effect to any amount requested), shall not exceed the Swingline Lender exceeding lesser of (i) the Swingline Lender’s Swingline Commitment or Aggregate Commitments less the sum of all outstanding Revolving Credit Loans and the LC Obligations and (ii) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitment; provided further that the Swingline Lender shall will not be required to make a Swingline Loan from and after the date which is one (1) day after it has received written notice from the Borrower or any Lender that one or more of the applicable conditions to refinance an outstanding Credit Extensions specified in Section 4.02 is not then satisfied until such conditions are satisfied or waived in accordance with the provisions of this Agreement (and the Swingline Loan. Within Lender shall be entitled to conclusively rely on any such notice and shall have no obligation to independently investigate the foregoing limits accuracy of such notice and subject shall have no liability to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow in respect thereof if such notice proves to be inaccurate). The aggregate amount of all Swingline LoansLoans in any Borrowing must be equal to $100,000 or any higher integral multiple of $100,000.
(b) To request Swingline Loans shall be refunded by the Lenders on demand by the Swingline Lender. Such refundings shall be made by each Lender in accordance with its Applicable Percentage and shall thereafter be reflected as Loans of the Lenders on the books and records of the Administrative Agent. Each Lender shall fund its Applicable Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but in no event later than 1:00 p.m. on the next succeeding Business Day after such demand is made. No Lender’s obligation to fund its Applicable Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Applicable Percentage of a Swingline Loan, the Borrower nor shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of any Lender’s Applicable Percentage be increased as a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender result of any such notice received from the Borrower. The Swingline failure of any other Lender shall make each Swingline Loan available to the Borrower by means fund its Applicable Percentage of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Borrower shall pay to the Swingline Lender may the amount of each Swingline Loan (unless such Swingline Loan is fully refunded by written notice given the Lenders pursuant to Section 2.02(b)): (i) on demand and (ii) if no demand has been made, on the tenth Business Day after the date of the Swingline Loans, and in no event later than the Maturity Date. In addition, the Borrower hereby authorizes the Administrative Agent not later than 10:00 a.m.to charge any account maintained by the Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of such Swingline Loans. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, New York City time, on any Business Day require the loss of the amount so recovered shall be ratably shared among all the Lenders to acquire participations in accordance with their Applicable Percentages (unless the amounts so recovered by or on such Business Day in all or a portion behalf of the Borrower pertain to a Swingline Loans outstanding. Such notice shall specify Loan extended after the aggregate amount occurrence and during the continuance of Swingline Loans in an Event of Default of which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give has received notice thereof in the manner required pursuant to each LenderSection 10.02 and which such Event of Default has not been waived by the Majority Lenders or the Lenders, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. applicable).
(d) Each Lender acknowledges and agrees that its obligation to acquire participations in refund Swingline Loans pursuant to in accordance with the terms of this paragraph Section 2.02 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination including, without limitation, non-satisfaction of the Commitmentsconditions set forth in Article IV. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.02, one of the events described in subsections (j)(i), (j)(ii) or (j)(iii) of Section 8.01 shall have occurred, each Lender will, on the date the applicable Revolving Credit Loan would have been made, purchase an undivided, irrevocable and unconditional participating interest in the Swingline Loans to be refunded in an amount equal to its Applicable Percentage of the aggregate amount of such payment shall be made without any offset, abatement, withholding or reduction whatsoeverSwingline Loans. Each Lender shall comply with its obligation under this paragraph by wire will immediately transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to in immediately available funds, the amount of its participation, and upon receipt thereof, the Swingline Lender or will deliver to such Lender a certificate evidencing such participation dated the Administrative Agentdate of receipt of such funds and for such amount. Whenever, as applicable, if and to at any time after the extent Swingline Lender has received from any Lender such payment is required to be refunded to the Borrower for any reason. The purchase of participations Lender’s participating interest in a Swingline Loan pursuant Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to this paragraph shall not relieve the Borrower of any default such Lender its participating interest in such amount (appropriately adjusted, in the payment thereofcase of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded).
Appears in 1 contract
Swingline Loans. (ai) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during on and following the Availability PeriodEffective Date until the Commitment Termination Date, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by exceeding $15,000,000 (the “Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Sublimit”) or (ii) the Swingline Lender’s aggregate Revolving Credit Exposure Exposures exceeding its Commitmentthe aggregate Revolving Loan Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. The Swingline Sublimit is part of, and not in addition to, the Revolving Loan Commitments.
(bii) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimilein writing, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make wire each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)Letter of Credit disbursement, by remittance to the Issuing Bankapplicable L/C Issuer) by 3:00 4:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ciii) Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Pro Rata Share times the amount of such Swingline Loan. The Swingline Lender at any time in its sole and absolute discretion may by written notice given request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Revolving Lender make an Alternate Base Rate Revolving Loan in an amount equal to such Revolving Lender’s Pro Rata Share of the amount of Swingline Loans then outstanding. Such request shall be made in writing and in accordance with the requirements of Sections 2.1(a) as if such Borrowing was an Advance, without regard to the Borrowing minimum and Borrowing multiples, but subject to the unutilized portion of the Revolving Loan Commitments and the conditions set forth in Section 3.2. Each Revolving Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Notice of Advance available to the Administrative Agent in same day funds for the account of the Swingline Lender at the Administrative Agent’s office not later than 10:00 a.m.1:00 p.m., New York City time, on the day specified in such written request, whereupon, subject to Section 2.1(h)(iv), each Revolving Lender that so makes funds available shall be deemed to have made an Alternate Base Rate Revolving Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(iv) If for any Business Day require reason any Swingline Loan cannot be refinanced by such an Alternate Base Rate Revolving Loan in accordance with Section 2.1(h)(iii), the request for an Alternate Base Rate Revolving Loan Advance submitted by the Swingline Lender as set forth herein shall automatically be deemed to be made to the Revolving Lenders to acquire fund their risk participations in the Swingline Loans. Each Revolving Lender hereby irrevocably and unconditionally agrees to, fund in cash their respective participations in the Swingline Loans on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender▇▇▇▇▇▇’s Applicable Percentage Pro Rata Share of such Swingline Loan or Swingline Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender▇▇▇▇▇▇’s Applicable Percentage Pro Rata Share of such Swingline Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Loan Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: First Lien Credit and Guaranty Agreement (RadNet, Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to Lender, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.6, shall make Swingline Loans to the Borrower from time to time in Dollars or a Permitted Foreign Currency during the Availability Revolving Commitment Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or (ii) the Swingline Lender’s aggregate Revolving Extensions of Credit Exposure exceeding its Commitmentthe Revolving Commitment then in effect; provided provided, that the Swingline Lender shall not be required to make a Swingline Loan (i) to refinance an outstanding Swingline LoanLoan or (ii) if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by making such Swingline Loan may have, Fronting Exposure. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay repay and reborrow Swingline Loans. Each Swingline Loan shall be an ABR Loan and denominated in Dollars.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone (promptly confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (y) the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan Loan, and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing(z) proper wire instructions for the same. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Revolving Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.6(a), or (B) that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender shall make each Swingline Loan available to the Borrower at its office by means of a credit or wire transfer of funds, as applicable, to an crediting the account of the Borrower designated by on the Borrower in writing to books of the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) immediately available funds by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. Swingline Loans shall be made in an amount equal to $100,000 or a whole multiple of $100,000 in excess thereof.
(c) The Borrower shall have the right at any time and from time to time to repay, without premium or penalty, any Swingline Loan, in whole or in part, upon giving written or telecopy notice (or telephone notice promptly confirmed by written or telecopy notice) to the Swingline Lender and to the Administrative Agent before 3:00 p.m., New York City time on the date of repayment at the Swingline Lender’s address for notices specified in the Swingline Lender’s administrative questionnaire. All principal payments of Swingline Loans shall be accompanied by accrued interest on the principal amount being repaid to the date of payment.
(d) The Swingline Lender may and, at any time there shall be Swingline Loan outstanding for more than seven days, the Swingline Lender shall by written notice given to the Administrative Agent not later than 10:00 a.m.3:00 p.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Revolving Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving Lender’s Applicable Revolving Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverwhatsoever (provided, that such payment shall not cause such Revolving Lender’s Revolving Extensions of Credit to exceed such Revolving Lender’s Revolving Commitment). Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 3.4 with respect to Loans made by such Lender (and Section 2.06 3.4 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(e) If the Revolving Termination Date applicable to a Tranche shall have occurred at a time when other Tranches will remain outstanding, then on such Revolving Termination Date all then outstanding Swingline Loans with respect to such maturing Tranche shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such Revolving Termination Date); provided, that, if on the occurrence of such Revolving Termination Date (after giving effect to any repayments of Revolving Loans and any reallocation as contemplated in Section 3.4(d)), (i) there shall exist sufficient unutilized Revolving Commitments that will remain outstanding after the date thereof and (ii) the conditions set forth in Sections 5.2(a) and 5.2(b) shall be satisfied at such time so that the respective outstanding Swingline Loans could be incurred pursuant to such Revolving Commitments which will remain in effect after the occurrence of such Revolving Termination Date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and the same shall be deemed to have been incurred solely pursuant to such Revolving Commitments and such Swingline Loans shall not be so required to be repaid in full on such Revolving Termination Date.
(f) Notwithstanding anything to the contrary contained in this Agreement, in the event a Revolving Lender becomes a Defaulting Lender, then such Defaulting Lender’s Revolving Percentage in all outstanding Swingline Loans will automatically be reallocated among the Revolving Lenders that are Non-Defaulting Lenders pro rata in accordance with each Non-Defaulting Lender’s Revolving Percentage (calculated without regard to the Revolving Commitment of the Defaulting Lender), but only to the extent that such reallocation does not cause the Revolving Extensions of Credit of any Non-Defaulting Lender to exceed the Revolving Commitment of such Non-Defaulting Lender. If such reallocation cannot, or can only partially, be effected, the Borrower shall, within five Business Days after written notice from the Administrative Agent or such longer period as the Administrative Agent shall agree, pay to the Administrative Agent an amount of cash equal to such Defaulting Lender’s Revolving Percentage (calculated as in effect immediately prior to it becoming a Defaulting Lender) of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to the first sentence of this Section 2.6(f)) to be applied to the repayment of such Swingline Loans. So long as there is a Defaulting Lender, the Swingline Lender shall not be required to lend any Swingline Loans if the sum of, without duplication, the Non-Defaulting Lenders’ Revolving Percentages of the outstanding Revolving Loans and L/C Obligations and their participations in Swingline Loans after giving effect to any such requested Swingline Loans would exceed the aggregate Revolving Commitments of the Non-Defaulting Lenders (such excess, “Fronting Exposure”).
(g) The Borrower may, at any time and from time to time, designate as Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided herein and is reasonably satisfactory to the Administrative Agent. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent, the Borrower and such designated Swingline Lender, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder.
Appears in 1 contract
Swingline Loans. |US-DOCS\115543490.9||
(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to Lender, in reliance upon the agreements of the other Tranche A Revolving Lenders set forth in this Section 2.6, shall make Swingline Loans to the Borrower from time to time in Dollars during the Availability PeriodRevolving Commitment Period with respect to the Tranche A Revolving Facility, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or $50,000,000, (ii) the Swingline Lender’s aggregate Tranche A Revolving Extensions of Credit Exposure exceeding its Commitmentthe Tranche A Availability then in effect; provided provided, that the Swingline Lender shall not be required to make a Swingline Loan (i) to refinance an outstanding Swingline LoanLoan or (ii) if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by making such Swingline Loan may have, Fronting Exposure. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay repay and reborrow Swingline Loans. Each Swingline Loan shall be an ABR Loan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender of such request by telephone (promptly confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noon1:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (y) the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan Loan, and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing(z) proper wire instructions for the same. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Tranche A Revolving Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.6(a), or (B) that one or more of the applicable conditions specified in Section 5.2 is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender shall make each Swingline Loan available to the Borrower at its office by means of a credit or wire transfer of funds, as applicable, to an crediting the account of the Borrower designated by on the Borrower in writing to books of the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) immediately available funds by 3:00 p.m., New York City time, on the requested date of such Swingline Loan. Swingline Loans shall be made in an amount equal to $100,000 or a whole multiple of $100,000 in excess thereof.
(c) The Borrower shall have the right at any time and from time to time to repay, without premium or penalty, any Swingline Loan, in whole or in part, upon giving written or telecopy notice (or telephone notice promptly confirmed by written or telecopy notice) to the Swingline Lender and to the Administrative Agent before 3:00 p.m., New York City time on the date of repayment at the Swingline Lender’s address for notices specified in the Swingline Lender’s administrative questionnaire. All principal payments of Swingline Loans shall be accompanied by accrued interest on the principal amount being repaid to the date of payment.
(d) The Swingline Lender may and, at any time there shall be Swingline Loan outstanding for more than seven days, the Swingline Lender shall by written notice given to the Administrative Agent not later than 10:00 a.m.3:00 p.m., New York City time, on any Business Day require |US-DOCS\115543490.9|| the Tranche A Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Tranche A Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Tranche A Revolving Lender, specifying in such notice such Lender’s Applicable Tranche A Revolving Percentage of such Swingline Loan or Loans. Each Tranche A Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving Lender’s Applicable Tranche A Revolving Percentage of such Swingline Loan or Loans. Each Tranche A Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Tranche A Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoeverwhatsoever (provided, that such payment shall not cause such Tranche A Revolving Lender’s Tranche A Revolving Extensions of Credit to exceed such Tranche A Revolving Lender’s Tranche A Revolving Commitment). Each Tranche A Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 3.4 with respect to Loans made by such Lender (and Section 2.06 3.4 shall apply, mutatis mutandis, to the payment obligations of the Tranche A Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Tranche A Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Tranche A Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(e) If the Revolving Termination Date applicable to a Tranche shall have occurred at a time when other Tranches will remain outstanding, then on such Revolving Termination Date all then outstanding Swingline Loans with respect to such maturing Tranche shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such Revolving Termination Date); provided, that, if on the occurrence of such Revolving Termination Date (after giving effect to any repayments of Revolving Loans and any reallocation as contemplated in Section 3.4(d)), (i) there shall exist sufficient unutilized Tranche A Revolving Commitments that will remain outstanding after the date thereof and (ii) the conditions set forth in Sections 5.2(a) and 5.2(b) shall be satisfied at such time so that the respective outstanding Swingline Loans could be incurred pursuant to such Tranche A Revolving Commitments which will remain in effect after the occurrence of such Revolving Termination Date, then there shall be an automatic adjustment on such date of the |US-DOCS\115543490.9|| participations in such Swingline Loans and the same shall be deemed to have been incurred solely pursuant to such Tranche A Revolving Commitments and such Swingline Loans shall not be so required to be repaid in full on such Revolving Termination Date.
(f) Notwithstanding anything to the contrary contained in this Agreement, in the event a Tranche A Revolving Lender becomes a Defaulting Lender, then such Defaulting Lender’s Tranche A Revolving Percentage in all outstanding Swingline Loans will automatically be reallocated among the Tranche A Revolving Lenders that are Non-Defaulting Lenders pro rata in accordance with each Non-Defaulting Lender’s Tranche A Revolving Percentage (calculated without regard to the Revolving Commitment of the Defaulting Lender), but only to the extent that such reallocation does not cause the Tranche A Revolving Extensions of Credit of any Non-Defaulting Lender to exceed the Tranche A Revolving Commitment of such Non-Defaulting Lender. If such reallocation cannot, or can only partially, be effected, the Borrower shall, within five Business Days after written notice from the Administrative Agent or such longer period as the Administrative Agent shall agree, pay to the Administrative Agent an amount of cash equal to such Defaulting Lender’s Tranche A Revolving Percentage (calculated as in effect immediately prior to it becoming a Defaulting Lender) of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to the first sentence of this Section 2.6(f)) to be applied to the repayment of such Swingline Loans. So long as there is a Defaulting Lender, the Swingline Lender shall not be required to lend any Swingline Loans if the sum of, without duplication, the Non-Defaulting Lenders’ Tranche A Revolving Percentages of the outstanding Tranche A Revolving Loans, L/C Obligations, Local Loans and Acceptances, and their participations in Swingline Loans after giving effect to any such requested Swingline Loans would exceed the aggregate Tranche A Revolving Commitments of the Non-Defaulting Lenders (such excess, “Fronting Exposure”).
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Revlon Inc /De/)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability Period, Period (i) US Tranche Swingline Loans to the US Borrower in US Dollars in an aggregate principal amount at any time outstanding that will not result in (iA) the aggregate principal amount of outstanding US Tranche Swingline Loans made by exceeding US$25,000,000 or (B) the Swingline Lender aggregate US Tranche Revolving Exposures exceeding the Swingline Lender’s Swingline Commitment or aggregate US Tranche Revolving Commitments and (ii) Australian Tranche Swingline Loans to the Australian Borrower in Australian Dollars in an aggregate principal amount at any time outstanding that will not result in (A) the aggregate principal amount of outstanding Australian Tranche Swingline Lender’s Loans exceeding US$10,000,000 or (B) the aggregate Australian Revolving Credit Exposure Tranche Exposures exceeding its Commitmentthe aggregate Australian Revolving Tranche Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Borrowers may borrow, repay, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the applicable Borrower shall notify the Administrative Applicable Agent of such request by telephone (confirmed by e-mail or facsimiletelecopy), e-mail or facsimile, not later than 12:00 noonNoon, New York City timeLocal Time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Applicable Agent will promptly advise the Swingline Lender of any such notice received from the such Borrower. The Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an account of such Borrower maintained with the Swingline Lender or another account requested by such Borrower designated and agreed to by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank) by 3:00 2:00 p.m., New York City timeLocal Time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Applicable Agent not later than 10:00 a.m.2:00 p.m., New York City timeLocal Time, on any Business Day require (i) with respect to US Tranche Swingline Loans, the US Tranche Revolving Lenders and (ii) with respect to Australian Tranche Swingline Loans, the Australian Revolving Tranche Lenders, to acquire participations on such Business Day in all or a portion of the US Tranche Swingline Loans or the Australian Tranche Swingline Loans, as applicable, then outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the applicable Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Applicable Agent will give notice thereof to each applicable Revolving Lender, specifying in such notice such Lender’s Applicable applicable Tranche Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Applicable Agent, for the account of the Swingline Lender, such Lender’s Applicable applicable Tranche Percentage of such Swingline Loan or Loans in the currency of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation obligations under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Applicable Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Applicable Agent shall notify the applicable Borrower of any participations in any Swingline Loan of such Borrower acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Applicable Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the a Borrower (or other party on behalf of the such Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Applicable Agent; any such amounts received by the Administrative Applicable Agent shall be promptly remitted by the Administrative Applicable Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the applicable Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make Swingline Loans to the Company or the European Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Loan Sublimit or (ii) the Swingline Lender’s aggregate Credit Exposures would exceed the total Revolving Credit Exposure exceeding its CommitmentCommitments; provided provided, further, that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower Company and/or the European Borrower, as applicable, may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Applicable Participant shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Applicable Participant’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower Company and/or the European Borrower, as applicable, shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by (i) telephone or (ii) by a Swingline Loan Notice; provided that any telephonic notice must be confirmed promptly by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on delivery to the day Swingline Lender and the Administrative Agent of a proposed Swingline LoanLoan Notice. Each Swingline Loan Notice shall be irrevocable. Each such notice shall must be irrevocable received by the Swingline Lender and the Administrative Agent not later than 3:00 p.m. on the requested borrowing date, and shall specify (A) the amount to be borrowed, which shall be a minimum of $100,000 and (B) the requested date (borrowing date, which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 4:00 p.m. on the date of the proposed Swingline Loan Borrowing (1) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a) or (2) that one or more of the applicable conditions specified in Article 4 is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the applicable Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the such Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC L/C Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 5:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the applicable Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate Lender to so request on its behalf), that each Applicable Participant make a Base Rate Loan to such Borrower in an amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof equal to each Lender, specifying in such notice such Lender’s Applicable Percentage of the amount of the Swingline Loans then outstanding under which such Swingline Loan or was made. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. Each The Swingline Lender hereby absolutely and unconditionally agrees, upon receipt shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice as provided above, to pay to the Administrative Agent, . Each Applicable Participant shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (c), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Applicable Participants fund its risk participation in the relevant Swingline Loan and such Applicable Participant’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Applicable Participant fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Applicable Participant pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Applicable Participant (acting through the Administrative Agent), on demand, such Lenderamount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Applicable Participant pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Applicable Participant’s Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Applicable Percentage of such Swingline Loan or Loans. Participant (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Applicable Participant’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, any Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or an Event of Default (C) any other occurrence, event or condition, whether or not similar to any reduction or termination of the Commitmentsforegoing; provided, and however, that each Applicable Participant’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of any Borrower to repay Swingline Loans to such Borrower, together with interest as provided herein.
(i) At any time after any Applicable Participant has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment shall be made without any offseton account of such Swingline Loan, abatement, withholding or reduction whatsoever. Each the Swingline Lender shall comply with will distribute to such Applicable Participant its obligation under this paragraph by wire transfer of immediately available funds, Applicable Percentage thereof in the same manner funds as provided those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 2.06 with respect 9.08 (including pursuant to Loans made any settlement entered into by such the Swingline Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lendersin its discretion), and the Administrative Agent each Applicable Participant shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Applicable Participants under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing each Borrower of any participations in any for interest on the Swingline Loans to such Borrower. Until each Applicable Participant funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Applicable Participant’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be solely for the account of the Swingline Lender.
(f) Each Borrower shall make all payments of principal and interest in respect of the Swingline Loans made to the Administrative Agent and not such Borrower directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Swingline Loans. (a) Subject The Swingline Lender is authorized by the Lenders and shall, subject to the terms provisions of this Section, make Swingline Loans up to the Swingline Loan Sublimit in the aggregate outstanding at any time (which requests for Borrowings of Swingline Loans shall be in minimum integrals of $500,000) consisting only of Prime Rate Loans, upon a notice of Borrowing received by the Administrative Agent and conditions set forth hereinthe Swingline Lender (which notice, at the Swingline Lender’s discretion, may be submitted prior to 1:00 p.m., Boston 62 time, on the Business Day on which such Swingline Loan is requested). Swingline Loans shall be subject to periodic settlement with the Lenders under Section 2.8 below.
(b) Swingline Loans may be made only in the following circumstances: (A) for administrative convenience, the Swingline Lender agrees to shall, at the Lead Borrower’s request, make Swingline Loans to in reliance upon the Borrower from time to time during Borrowers’ actual or deemed representations under Section 4.2, that the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment applicable conditions for borrowing are satisfied or (iiB) the Swingline Lender’s Revolving Credit Exposure exceeding its Commitmentfor Permitted Overadvances; provided that the Swingline Lender shall not be required obligated to make a any Swingline Loan to refinance an outstanding Swingline Loanif it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within If the foregoing limits and subject to conditions for borrowing under Section 4.2 cannot be fulfilled at the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request time of a requested Swingline Loan, the Lead Borrower shall notify give immediate notice thereof to the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders“Noncompliance Notice”), and the Administrative Agent shall promptly pay to provide each Lender with a copy of the Noncompliance Notice. If the conditions for borrowing under Section 4.2 cannot be fulfilled, the Required Lenders may direct the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphto, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower thereupon shall, cease making Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or other party on behalf of the Borrower) are waived in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereofaccordance with Section 9.
Appears in 1 contract
Sources: Credit Agreement (Caleres Inc)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make (x) U.S. Swingline Loans in Dollars to the Borrower from time to time during the Availability Period and (y) Alternative Currency Swingline Loans in Dollars to the Borrower from time to time during the Availability Period; provided that no such Swingline Loan shall be permitted if, in an aggregate principal amount at any time outstanding that will not result in after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans made by would exceed the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment or Loan Sublimit, (ii) the Swingline Lender’s aggregate U.S. Revolving Credit Exposure exceeding its CommitmentExposures would exceed the total U.S. Revolving Commitments and (iii) the aggregate Alternative Currency Revolving Credit Exposures would exceed the total Alternative Currency Revolving Commitments; provided further that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each U.S. Revolving Lender, in the case of U.S. Swingline Loans, and each Alternative Currency Revolving Lender, in the case of Alternative Currency Swingline Loans, shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent and Swingline Lender of such request request, which may be given by telephone (confirmed and shall be irrevocable. Each such notice must be received by e-mail or facsimile), e-mail or facsimile, the Swingline Lender and the Administrative Agent not later than 12:00 noon, New York City time, 1:00 p.m. on the day requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, (ii) the requested borrowing date, which shall be a proposed Business Day and (iii) whether such Swingline Loan shall constitute a U.S. Swingline Loan or an Alternative Currency Swingline Loan. Each such telephonic notice shall must be irrevocable confirmed promptly by delivery to the Swingline Lender and shall specify the requested date (which shall be Administrative Agent of a Business Day) written Swingline Loan Notice, appropriately completed and signed by a Responsible Officer of the Swingline Loan, the amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR BorrowingBorrower. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise Promptly after receipt by the Swingline Lender of any telephonic Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice received (by telephone or in writing) from the Borrower. The Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, the Swingline Lender shall make each such Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an the general deposit account of the Borrower designated by the Borrower in writing to with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.05(c), by remittance to the relevant Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(ci) The Swingline Lender at any time in its sole and absolute discretion may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City timerequest, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion behalf of the Borrower (which hereby irrevocably authorizes the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such noticeLender to so request on its behalf), the Administrative Agent will give notice thereof to that each U.S. Revolving Lender, specifying in such notice the case of U.S. Swingline Loans, or Alternative Currency Revolving Lender, in the case of Alternative Currency Swingline Loans, make an Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of the applicable Class of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the Borrower with a copy of the applicable Borrowing Request promptly after delivering such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent. Each U.S. Revolving Lender, in the case of U.S. Swingline Loans, or Alternative Currency Revolving Lender, in the case of Alternative Currency Swingline Loans, shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made an Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the U.S. Revolving Lenders, in the case of U.S. Swingline Loans, or Alternative Currency Revolving Lenders, in the case of Alternative Currency Swingline Loans, fund its risk participation in the relevant Swingline Loan and such Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Applicable Percentage Base Rate Loan included in the relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of such the Swingline Loan or Loans. Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Lender acknowledges and agrees that its Revolving Lender’s obligation to acquire make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this paragraph is Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, including (B) the occurrence and or continuance of a Default Default, or an Event of Default (C) any other occurrence, event or condition, whether or not similar to any reduction or termination of the Commitmentsforegoing; provided, and however, that each Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment shall on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Lender its Applicable Percentage thereof in the same funds as those received by the Swingline Lender.
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be made without returned by the Swingline Lender under any offsetof the circumstances described in Section 9.08 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available fundseach U.S. Revolving Lender, in the same manner as provided case of U.S. Swingline Loans, or each Alternative Currency Revolving Lender, in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 the case of Alternative Currency Swingline Loans, shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender its Applicable Percentage thereof on demand of the amounts so received by it Administrative Agent, plus interest thereon from the Lendersdate of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall notify survive the payment in full of the Obligations and the termination of this Agreement.
(e) The Swingline Lender shall be responsible for invoicing the Borrower of any participations in any for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan acquired or risk participation pursuant to this paragraphSection 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, and thereafter payments interest in respect of such Swingline Loan Applicable Percentage shall be made to solely for the Administrative Agent account of the Swingline Lender.
(f) The Borrower shall make all payments of principal and not interest in respect of the Swingline Loans directly to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
Appears in 1 contract
Sources: Credit Agreement (Mylan Inc.)
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the each Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, Period in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of the outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment $75,000,000 or (ii) the Swingline Lender’s Aggregate Revolving Credit Exposure exceeding its Commitmentthe aggregate Commitments; provided that the Swingline Lender Lenders shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan; provided further that no Swingline Lender shall be required to make Swingline Loans in an aggregate outstanding amount exceeding $18,750,000. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Upon the request of any Swingline Lender, the Administrative Agent shall inform such Swingline Lender of the aggregate amount of Swingline Loans then outstanding and the Aggregate Revolving Credit Exposure then outstanding.
(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon10:00 a.m., New York City San Francisco time, on the day of a the proposed Swingline Loan. Each such notice telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile or other electronic delivery to the Administrative Agent of an executed written Borrowing Request. Each such telephonic and written Borrowing Request shall specify the requested date (which shall be a Business Day) of ), the applicable Swingline Loan, Lender and the amount of the requested Swingline Loan and whether such Borrowing is the location and number of the account to which funds are to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (disbursed or, in the case of a any Swingline Loan made requested to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e2.05(f), the identity of the Issuing Bank that has made such LC Disbursement. Promptly following the receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise the Swingline Lenders of the details thereof. The applicable Swingline Lender shall make any Swingline Loan to be made by remittance it available to the Borrower by means of a wire transfer to the account specified in such Borrowing Request or to the applicable Issuing Bank) , as the case may be, by 3:00 2:00 p.m., New York City San Francisco time, on the requested date of such Swingline Loan.
(c) The Any Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 8:00 a.m., New York City San Francisco time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans of such Swingline Lender outstanding. Such notice shall specify the aggregate amount of the Swingline Loans in which the Lenders will be required to participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agreesagrees to pay, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the applicable Swingline Lender, such Revolving Lender’s Applicable Percentage of such Swingline Loan or Revolving Loans. Each Revolving Lender acknowledges and agrees that, in making any Swingline Loan, each Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Parent and the Borrower deemed made pursuant to Section 4.02. Each Revolving Lender further acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Revolving Loans made by such Revolving Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the LendersRevolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly pay remit to the applicable Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the applicable Swingline Lender. Any amounts received by the any Swingline Lender from the Borrower (or other party Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the applicable Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the applicable Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the Borrower of its obligation to repay such Swingline Loan.
(d) The Borrower may, at any default time and from time to time, designate as additional Swingline Lenders one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as a Swingline Lender hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the payment Administrative Agent and the Borrower, executed by the Borrower, the Administrative Agent and such designated Swingline Lender, and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of a Swingline Lender under this Agreement and (ii) references herein to the term “Swingline Lender” shall be deemed to include such Revolving Lender in its capacity as a lender of Swingline Loans hereunder.
(e) The Borrower may terminate the appointment of any Swingline Lender as a “Swingline Lender” hereunder by providing a written notice thereof to such Swingline Lender, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Swingline Lender’s acknowledging receipt of such notice and (ii) the fifth Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the Swingline Exposure of such Swingline Lender shall have been reduced to zero. Notwithstanding the effectiveness of any such termination, the terminated Swingline Lender shall remain a party hereto and shall continue to have all the rights of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to such termination, but shall not make any additional Swingline Loans.
Appears in 1 contract
Swingline Loans. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability PeriodPeriod (each such loan, a "Swingline Loan"), in a minimum amount of $15,000,000 and in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by the Swingline Lender exceeding the Swingline Lender’s Swingline Commitment Sublimit or (ii) the Swingline Lender’s sum of the Aggregate Revolving Credit Exposure Exposures exceeding its Commitmentthe Aggregate Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, borrow and prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall deliver to the Swingline Lender a Swingline Loan Notice or notify the Administrative Agent of such request by telephone (confirmed by e-mail or facsimile), e-mail or facsimile, not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan, provided that notice for a proposed Swingline Loan that is an ABR Loan shall be not later than 3:00 p.m., New York City Time, on the date of the proposed ABR Loan that is a Swingline Loan. Each such notice telephonic Swingline Loan Notice shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile, electronic communication or telecopy to the Administrative Agent of a written Swingline Loan Notice. Each Swingline Loan Notice shall specify the requested date (which shall be a Business Day) of the Swingline Loan, the and amount of the requested Swingline Loan and whether such Borrowing is to be an ABR Borrowing or a LMIR Borrowing. If no election as to the Type of Swingline Borrowing is specified, then the requested Swingline Borrowing shall be an ABR BorrowingLoan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall will make each such Swingline Loan available to the Borrower by means of a credit or wire transfer of funds, as applicable, wiring immediately available funds to an account of the Borrower designated by the Borrower in writing to the Swingline Lender (or, in the case of a applicable Swingline Loan Notice, provided that Swingline Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), ) shall be remitted by remittance the Administrative Agent to the Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s 's Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s 's Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(d) If the maturity date shall have occurred in respect of any tranche of Commitments at a time when another tranche or tranches of Commitments is or are in effect with a longer maturity date, then on the earliest occurring maturity date all then outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such maturity date); provided, however, that if on the occurrence of such earliest maturity date (after giving effect to any repayments of Loans), there shall exist sufficient unutilized Extended Commitments so that the respective outstanding Swingline Loans could be incurred pursuant the Extended Commitments which will remain in effect after the occurrence of such maturity date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and same shall be deemed to have been incurred solely pursuant to the relevant Extended Commitments, and such Swingline Loans shall not be so required to be repaid in full on such earliest maturity date.
Appears in 1 contract